State v. Moore

• Decision Date: 22 April 1924
• Docket Number: 11482.
• Citation: State v. Moore, 128 S.C. 192, 122 S.E. 672 (S.C. 1924)
• Parties: STATE v. MOORE.
• Court: South Carolina Supreme Court

122 S.E. 672

128 S.C. 192

STATE v. MOORE.

No. 11482.

Supreme Court of South Carolina

April 22, 1924

Appeal from General Sessions Circuit Court of Marlboro County; J. W De Vore, Judge.

Criminal prosecution by the State against Marvin W. Moore. From an order overruling a demurrer to an indictment, defendant appeals. Order reversed.

McColl & Stevenson of Bennettsville, for appellant.

J Munroe Spears, Sol., of Darlington, and N.W. Edens and J. K Owens, both of Bennettsville, for the State.

FRASER J.

This is an indictment under section 208, Criminal Code of 1912, which reads as follows:

"Sec. 208. Misdemeanor to Draw a Check When Drawer Has No Funds on Deposit. Any person who shall hereafter draw and utter any check, draft, or order upon a bank, banking house, person, firm, or corporation with which or whom he has not, at the time, sufficient funds to meet the same, and shall thereby obtain from another money or other thing of a value or induce such person to surrender or postpone any remedy he may have against such drawer, shall be guilty of a misdemeanor, and, upon conviction, shall be punished by fine or imprisonment in the discretion of the court; the offense to be within the jurisdiction of the magistrate's court if the value of the property obtained be less than twenty dollars and be punished by a fine not exceeding one hundred dollars or imprisonment not exceeding thirty days: Provided, that if such person shall deposit with the drawee of such paper within thirty days thereafter funds sufficient to meet the same with all costs and interest which may have accrued, the prosecution under this section shall be discontinued."

In 1923 the Legislature re-enacted this section (33 St. at Large, p. 120), but required the presence of a fraudulent intent. The act of 1923 repealed the section of the Code upon which this indictment was founded, and the demurrer to the indictment should have been sustained.

Sutherland on Statutory Construction, § 142: "A change of the elements of the offense, or in the elements or amount of the penalty will destroy the identity of the offense and effect a repeal to the extent of the repugnance."

25 Ruling Case Law, p. 930 : "Thus where a later statute defines an offense that is described in an earlier statute, the earlier statute is repealed."

In this case the earlier statute provided punishment without fraud; the later statute made fraud an essential element of the offense. The second statute repeals the first.

The demurrer to the indictment should have been sustained, and the order appealed from is reversed.

WATTS and MARION, JJ., concur.

COTHRAN J.

I concur in the result attained by the opinion of Mr. Justice FRASER, which is the dismissal of the prosecution, upon the ground of want of jurisdiction, and not upon the ground that the demurrer to the indictment should have been sustained, for the ground upon which the dismissal is adjudged was not the ground of the demurrer.

The act of 1923, in prescribing a new element in the offense declared by the act of 1909 (26 St. at Large, p. 18), the intent to defraud, and by its manifest provisions, was intended to cover the whole subject of "bogus checks," and embraced new provisions, plainly showing that it was a substitute for the act of 1909. It therefore operated as a repeal of the act of 1909. U.S. v. Tynen, 11 Wall. 88, 20 L.Ed. 153; U.S. v. Claflin, 97 U.S. 546, 24 L.Ed. 1082; note to 88 Am. St. Rep. 288; State v. Thomas, 14 Rich. 163.

In State v. Lewis, 33 S.E. 351 (not reported in South Carolina Reports), the court decided that the circuit court had no jurisdiction of a prosecution of one for committing an act after the statute making it a crime had been repealed, citing State v. Mansel, 52 S.C. 468, 30 S.E. 481, and practically overruling State v. Taylor, 2 McCord, 483.

In the Mansel Case the court also held that the matter was one of jurisdiction which could be raised for the first time in this court, and as I think sua sponte.

Upon the point raised by the demurrer I have this to say:

This appeal, coming up from an order overruling a demurrer to an indictment for violation of section 208, Criminal Code of 1912 (section 60 of 1922), the "bogus check law," involves the constitutionality of that statute. While the statute has been superseded by the act of 1923 (33 St. at Large, p. 120), and the question is academic except as to the case at bar and other cases that may have arisen under the former statute, it is one of exceedingly great importance, affecting vitally the powers of a co-ordinate branch of the government. A decision of this court against its constitutionality will, in my opinion, annihilate more than a score of criminal statutes upon the books.

Article 1, § 24, of the Constitution, provides:

"No person shall be imprisoned for debt except in cases of fraud."

It is contended by the appellant that the statute in question is violative of this constitutional provision. I do not think that it requires much stretch of the imagination to draw the conclusion that the act of 1909 (section 208) was passed in consequence of the decision of this court in the case of State v. Hicks, 77 S.C. 289, 57 S.E. 842, filed July 8, 1907. In that case Hicks passed for its face value in cash a check upon a bank in which he had no funds. He was indicted under the statute punishing the obtaining of money under false pretenses (Cr. Code 1922, § 64). The court held in effect that, while the drawing of a check upon a bank in which the drawer had no funds, was a false representation, the statute required in addition to that proof of the fact that it was done with intent to defraud, as its terms plainly show, and reversed the judgment of conviction upon the ground that the circuit judge erroneously charged the jury that the intent to defraud was conclusively shown by the false representation. While no objection was or could rightly be urged against this interpretation of the false pretenses statute, the Legislature evidently realized that the increasing magnitude of operations in worthless paper and the consequent demoralization of trade demanded a closing of the loophole through which so many crooks would escape, due to the difficulty of proving the necessary mental attitude of the check flasher, under that statute. Accordingly, as I think it fair to assume, the act of 1909 was passed, and I will assume, what I believe to be true, that its purpose was to declare it a misdemeanor to issue a check under the circumstances stated in the statute, and that the offense should be complete without allegation or proof of an intention on the part of the drawer to defraud.

This meets the issue squarely, and the battle ground chosen by the objectors to the statute is accepted; namely, that the omission of the element of intention to defraud renders the statute objectionable to the constitutional provision above quoted.

In my opinion the statute is impervious to that attack for the following reasons:

(1) It is an authorized exercise of legislative power to declare that the inhibited act shall constitute a misdemeanor, regardless of the intention of the perpetrator.

(2) It does not purport to punish the offender for the nonpayment of a debt, but for the violation of a criminal statute.

(3) The obtaining of money by a bogus check is the result of a false representation; an action therefor sounds in tort, and the constitutional provision is limited to debts arising ex contractu.

1. The statute is an authorized exercise of legislative power to declare that the inhibited act shall constitute a misdemeanor regardless of the intention of the perpetrator.

Regardless of any intention upon the part of the drawer of an invalid check to defraud the payee, it must be assumed that the Legislature recognized the existence of an evil which the statute was intended to curb: Carelessness in business dealings; overdrafts which caused imitation and trouble if dishonored, and embarrassment, loss of confidence, and injury, defalcations, and bankruptcy if honored; the practice of "kiting" checks; imposition and fraud; and disturbance of the even flow of the channels of trade and commerce, 75 per cent. of the business of which is transacted on paper. As a simple matter of morals it is wrong, if not fraudulent, to draw a check upon a bank in which there are no funds to meet it, and as a matter of public policy the law frowned upon it and proposed to stop it. That it had the power to declare it a crime regardless of the intention to defraud I have not a doubt.

In the case of State v. Am. Ag. Co., 118 S.C. 333, 110 S.E. 800, the court said:

"In offenses at common law, and under statutes, which do not disclose a contrary legislative purpose, to constitute a crime, the act must be accompanied by a criminal intent, or by such negligence or indifference to a duty or to consequences as is regarded by the law as equivalent to a criminal intent. The statute, however, may forbid the doing of an act, and make its commission a crime, regardless of the intent or knowledge of the doer, and, if such legislative intention appears, the court must give it effect, although the intent of the doer may have been innocent."

In State v. Reeder, 36 S.C. 497, 15 S.E. 544, the court had under review the statute which made it a crime to sell personal property covered by a lien. An exception assigned error in the following charge:

"The motive and intent is not a matter of inquiry. It is the act. It is the fact. If he sells it and disposes of it knowing that the superior lien exists, and gets it out of the way, that implies fraud."

In overruling the exception the court said:

"For it will be observed that this statute, unlike many other penal statutes, contained no

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