State v. De Nicola, 34096

• Decision Date: 13 April 1955
• Docket Number: No. 34096,34096
• Citation: 126 N.E.2d 62,163 Ohio St. 140
• Parties: , 56 O.O. 185 The STATE of Ohio, Appellee, v. DE NICOLA, Appellant.
• Court: Ohio Supreme Court

Page 140

163 Ohio St. 140

126 N.E.2d 62, 56 O.O. 185

The STATE of Ohio, Appellee, v. DE NICOLA, Appellant.

No. 34096.

Supreme Court of Ohio.

April 13, 1955.

Syllabus by the Court.

1. A postdated check, i. e., a check containing a date later than that of delivery, is a check within the purview of Section 1115.23, Revised Code, which provides that no person, with intent to defraud, shall make, draw, utter or deliver any check, draft, or order for the payment of money upon any bank or other depository, if such person, at the time, has insufficient funds or credit with such bank or depository.

2. The sufficiency of funds or credit is determinable at the time of presentment of a check for payment, and the delivery on November 3 of a check dated November 5 by a person in his capacity as president of a corporation, where at the time of delivery neither he nor the corporation has any funds in the drawee bank, never had any funds therein, and made no deposit prior to the date of the check, constitutes the prima facie evidence of fraud defined in Section 1115.23, Revised Code.

3. Improper remarks of counsel during argument, unless so flagrantly improper as to prevent a fair trial, should be at once objected to and exception taken; otherwise error cannot be predicated upon the remarks alleged to have been improper. (Paragraph two of the syllabus in Scott v. State, 107 Ohio St. 475, 141 N.E. 19, approved and followed.)

Defendant, appellant herein, was indicted and tried in the Court of Common Pleas of Jefferson County for an alleged violation of Section 1115.23, Revised Code, which reads as follows:

"Credit, as used in this section, means any contract or agreement with a bank or depository for the payment, when presented, of a check, draft, or order for the payment of money.

'No person, with intent to defraud, shall make, draw, utter, or deliver any check, draft, or order for the payment of money upon any bank or other depository if such person, at the time, has insufficient funds or credit with such bank or depository.

'As against the maker or drawer, the making, drawing, uttering, or delivering of a check, draft, or order, payment of which is refused by the drawee bank or depository, shall be prima-facie evidence of intent to defraud and of knowledge of insufficient funds in, or credit with, such bank or depository.'

There was considerable conflict in the testimony given in the trial court. It is undisputed, however, that on November 3, 1953, the defendant issued a check drawn on the Wellsburg National Bank, Wellsburg, West Virginia, and payable in the amount of $3,405.66 to the Huron Sales Company. The check was signed by the defendant as president of the House Trailer Corporation and was given by him in payment for a house trailer sold to him by the payee, a Michigan corporation, and delivered to him to by the Morgan Drive- Away Company, agent of the payee. Although the check was given to the driver of the Morgan company on November 3, it was dated November 5. There was a conflict in the testimony as to whether defendant informed the driver that the check was postdated. The driver delivered the check to his superior on the evening of November 4, and on November 5, or thereafter, the payee presented it for payment which was refused. At no time did either the defendant or the House Trailer Corporation have an account in the Wellsburg bank.

Defendant's motions for directed verdict at the close of the state's case and at the close of all the evidence were overruled, and the jury returned a verdict of guilty, upon which judgment was rendered.

The Court of Appeals for Jefferson County affirmed the judgment of the Court of Common Pleas, and the cause is before this court upon the allowance of a motion for leave to appeal.

Bernard T. McCann, Pros. Atty., and John R. Spon, Steubenville, for appellee.

Alexander & Savinell, Steubenville, for appellant.

BELL, Judge.

The Brief of counsel for appellant sets out 30 questions of law involved in this appeal. These questions, however, are included in the five assignments of error. The first two assignments attack the overruling by the trial court of defendant's motions for directed verdict. The other three assignments involve claimed errors in the charge to the jury of the trial court, errors in the admission of evidence, and misconduct on the part of the prosecuting attorney.

The question presented by the first two assignments of error may be stated thusly: Is a postdated check a check within the meaning of Section 1115.23, Revised Code?

A postdated check has been defined thus in 7 Corpus Juris, 674, Section 387.

'A postdated check is one containing a later date than that of delivery. The presumption is that the maker has an inadequate fund in the bank at the time of giving it, but that he will have enough at the date of presentation. Such a check is payable on or at any time after the day of its date, being in effect the same as if it had not been issued until that date.' See also 9 C.J.S., Banks and Banking, § 345.

Commercially, postdated checks have long been considered checks in Ohio and subject to the law incident thereto rather than to that incident to other forms of negotiable instruments. In Andrew & Wilson v. Blachly & Simpson, 1860, 11 Ohio St. 89, it was held in the first paragraph of the syllabus:

'The circumstance that a draft for money, otherwise in the usual form of a check, is payable on a future specified day, is prima facie, but not conclusive evidence that the instrument is a bill of exchange, and as such entitled to days of grace.'

Brinkerhoff, C. J., speaking for the court, at page 93 said:

'Postdated checks, i. e., checks dated forward of the time at which they are actually drawn and delivered, seem to have been long familiar to the commercial world, and it seems to be universally conceded that they are nonetheless checks on that account, and subject to the legal incidents pertaining to checks only. Allen v. Keeves, 1 East. Rep., 435; Mohawk Bank v. Broderick, 10 Wend. [N.Y.], 304; Salter v. Burt, 20 Wend. [N.Y.], 205.'

In Stewart v. Smith, 17 Ohio St. 82, 85, which involved a check drawn and delivered on May 1, 1861, but dated June 1, 1861, this court said:

'The instrument on which this suit is brought is, on its face, a bank check, and not an ordinary bill of exchange. No different form or terms could have impressed that character upon it more clearly. And it does not lose that character by being postdated. Such checks are familiar to the commercial world. Whether they are postdated to suit the convenience of the drawer or that of the drawee, they are still bank checks, and the law applicable to them is the same. The check in this case was intended to be negotiated, and was accordingly made payable to 'cash or bearer.' One of the characteristics of bank checks is that they are always supposed to be drawn upon a fund existing at their date in the hands of the drawee, and they are therefore payable on presentation without grace.'

The criminal statute involved herein covers 'any check, draft, or order for the payment of money upon any bank or other depository.' In defining the offense the Legislature used no language having the effect of excepting a check from the operation of the statute merely because it is postdated. Two elements of the offense must be shown: (1) the giving of the check with the present knowledge of the insufficiency of funds or credit with the bank, and (2) the intent to defraud. There is no reason why both these elements may not as well exist in the case of a postdated check as in the case of one bearing the date of its delivery.

All the elements of fraud appear to be in the transaction between defendant and the payee of the check. It is quite clear that on November 3 the payee of the check parted with a house trailer in consideration of the defendant's payment by check. The defendant knew at the time that neither he nor his corporation had any funds in the drawee bank. Even resolving the conflict in the testimony concerning knowledge of the postdating on the part of payee's agent in favor of the defendant, or conceding,...