State v. Nelson

• Decision Date: 03 August 1931
• Docket Number: 7065.
• Parties: STATE v. NELSON.
• Court: South Dakota Supreme Court

237 N.W. 766

58 S.D. 562

STATE v. NELSON.

No. 7065.

Supreme Court of South Dakota

August 3, 1931

Appeal from Circuit Court, Brookings County; W. W. Knight, Judge.

Harold Nelson was charged with violating Laws 1923, c. 121, known as the Bad Check Law. A demurrer to the information was sustained, and the state appeals.

Affirmed.

M. Q Sharpe, Atty. Gen., and B. H. Schaphorst, of Brookings, for appellant.

Wallace E. Purdy, of Brookings, for respondent.

POLLEY P. J.

In this case an information was filed against the defendant charging him with the violation of the provisions of chapter 121, Laws of 1923, known as the Bad Check Law. Defendant demurred to the information on the ground that it did not state facts sufficient to constitute a public offense. The demurrer was sustained, and the state appeals.

The check was executed and delivered to the payee on the 22d day of October, but was dated November 22d. Therefore, it constituted what it known as a postdated check; and the first ground urged by the defendant in support of the demurrer is that the statute under which the information is drawn does not apply to a postdated check. Section 1 of the said statute reads as follows: "It shall be unlawful for any person either for himself or as the agent or representative of another or as an officer of a corporation, to make draw, utter, issue, or deliver any check, draft or order on any bank or depository for the payment of money or its equivalent, knowing at the time of the making, drawing uttering, issuing or delivering of such check, draft or order as aforesaid that he has not sufficient funds on deposit in or credit with such bank or depository with which to pay such check, draft or order upon presentation." It will be seen from a reading of this section that no mention of postdated checks is made, and it may be true that a postdated check is not a check at all as the same is defined by our statute. Section 1887, Rev. Code 1919, defines a check as "a bill of exchange drawn on a bank payable on demand." If the word "check" is to be confined within this definition, then it is no violation of the law to issue a postdated check because such a check is not payable on demand, but only on or after the date named in the check; but it is urged by the Attorney General that, if the instrument in question is not a check, it is an order or something else that has the same effect, and that the distinction should be disregarded and the defendant prosecuted as though he had given a check in the strict sense of the word. We will not pause to consider this contention, because we prefer to rest our decision upon another ground urged by the defendant.

It is the contention of the defendant that the effect of the law in question is "imprisonment for debt" arising out of or founded upon contract and is therefore in violation of section 15 of article 6 of our Constitution.

Section 2 of chapter 121, Laws 1923, provides the penalty for a violation of the provisions of Section 1 and reads as follows: "That any person violating any of the provisions of Section 1 of this act shall be deemed guilty of a misdemeanor if such check, draft, or order is drawn for less than twenty dollars and upon conviction shall be punished by a fine of not less than twenty-five dollars and not more than one hundred dollars or by imprisonment in the county jail for a period of not less than ten days and not more than six months, or by both such fine and imprisonment; if such check, draft or order shall be drawn for an amount of twenty dollars or more, such persons shall be deemed guilty of a felony and upon conviction shall be punished by a fine of not less than one hundred dollars and not more than five thousand dollars, or by imprisonment in the state penitentiary for a period of not less than one year and not more than five years or by both such fine and imprisonment."

These two sections, 1 and 2, if standing alone, constitute a complete law. Section 1 describes the offense and section 2 prescribes the penalty for a violation of the provisions of section 1, and make it a misdemeanor or a felony, according to the amount of the check, for a person to issue any check draft, or order on a bank knowing at the time that he did not have sufficient funds on deposit in, or credit with, the said bank with which to pay such check, draft, or order on presentation. But section 3 of the law reads as follows: "That in any case where a prosecution is begun under this act, the defendant shall have a right, upon application made for that purpose before trial, to have said action abated by showing to the court or the judge that he has had an account in said bank upon which said check, draft or order was drawn, thirty days next prior to the time said check, draft or order was delivered, and that said check, draft or order was drawn upon said bank or depository without intent to defraud the party receiving the same, and if the court shall so find, said action shall be abated and the defendant shall be discharged upon paying into the court the amount of such check, draft or order and the costs in such case." This section enables the defendant, after prosecution has been initiated, to pay the amount of the check, draft, or order involved, or show that he had sufficient funds in the said bank within thirty days next prior to the issuance of the check and did not intend to defraud the party receiving the same, and upon such showing to be discharged. Under the provisions of this section the defendant has his choice. He may make satisfaction as therein provided, or, upon failure to make such satisfaction, he must suffer the penalty provided in section 2. The question then becomes, Is the...