State v. Pilling

• Decision Date: 10 June 1909
• Parties: STATE v. PILLING.
• Court: Washington Supreme Court

102 P. 230

53 Wash. 464

STATE v. PILLING.

Supreme Court of Washington

June 10, 1909

Appeal from Superior Court, Pierce County; W. H. Snell, Judge.

Frank H. Pilling was convicted of uttering a check on a bank knowing that he had no sufficient funds to meet it, with intent ot defraud, and he appeals. Reversed for a new trial.

Walter M. Harvey, for appellant.

H. G Rowland and Robert M. Davis, for the State.

RUDKIN C.J.

On the 1st day of August, 1908, the defendant, Pilling, drew a check on the Daly Bank & Trust Company of Butte, Mont., in favor of James R. Thompson for the sum of $18,000, and delivered the same to the payee therein named. Thompson indorsed and delivered the check to the Scandinavian-American Bank of Tacoma, Wash., and the latter institution cashed the check and delivered the proceeds to Pilling or Thompson; Pilling ultimately receiving the money. The check was not paid on presentation, and an information was thereupon filed against the defendant under section 1 of the act of March 2, 1905 (Laws 1905, p.

78, c. 49), which reads as follows: 'Any person who shall with intent to defraud make, or draw, or utter or deliver to another person any check, or draft, on a bank or other depository for the payment of money, knowing at the time of such drawing, or delivery that he has not sufficient funds in, or credit with said bank or depository, to meet said check, in full upon its presentation shall be guilty of a felony,' etc. Trial was had before a jury, and from a judgment pronounced upon a verdict of guilty this appeal is prosecuted.

The denial of a challenge for cause interposed to one of the jurors by the appellant is assigned as error, but a new trial must be awarded on other grounds; and, inasmuch as this question will not arise on a retrial in the same form at least, we deem it unnecessary to discuss or consider it.

It is next contended that the court erred in denying a motion to dismiss, interposed at the close of the state's case, on the following grounds: (1) Because the state failed to prove that the appellant had not sufficient funds or credit in the bank to meet the check on its presentation; (2) because there was a variance between the allegations and the proofs, in this: Whereas the information charged that the appellant received the money and property of the prosecuting witness Thompson with intent to defraud him, the proof showed that the money received was the money and property of the Scandinavian-American Bank, and that the bank was the party defrauded; (3) because the act under which the information was filed is unconstitutional.

1. The admissions or confessions of the appellant, coupled with the evidence of the officer of the bank upon which the check was drawn, was sufficient evidence to carry the case to the jury on the question of the existence of funds or credit to meet the check on its presentation.

2. The essential elements of the crime defined by the statute are three: First, the drawing of a check on a bank or other depository for the payment of money; second, knowledge at the time of drawing the check that the drawer has not sufficient funds in or credit with the bank or depository to meet the check in full upon its presentation; and, third, an intent to defraud. Under this statute, the technical ownership of the money paid out by the bank over its counter was not material. The material question was the intent to defraud. The proof showed that the prosecuting witness was compelled to and did repay the money to the bank by reason of his indorsement, and that he was the party in fact defrauded. But aside from this, section 7132, Ballinger's Ann. Codes & St. (Pierce's Code, § 1665), provides that: 'In any case where the intent to defraud is necessary to constitute the offense of forgery or any other offense that may be prosecuted, it shall be sufficient to allege in the indictment or information an intent to defraud, without naming therein the particular person or body corporate intended to be defrauded; and on the trial of such indictment it shall be deemed sufficient, and shall not be deemed a variance, if there appear to be an intent to defraud the United States or any state, territory, county, city, town, or village, or any body corporate, or any public officer in his official capacity, or any copartnership, or any member thereof, or any particular person; and persons of skill shall be competent witnesses to prove a forgery.' Under this section, the naming of the person intended to be defrauded is immaterial, and may be treated as surplusage, and, if the appellant intended to defraud the Scandinavian-American Bank as claimed, such proof sustains the charge, and does not constitute a variance.

3. The contention that the statute...