State v. Pishner.

• Decision Date: 17 June 1913
• Citation: 72 W.Va. 603
• Court: West Virginia Supreme Court
• Parties: State v. Pishner.

72 W.Va. 603

State

v.Pishner.

Supreme Court of Appeals of West Virginia.

Submitted June 5, 1913.

Decided June 17, 1913.

False Pretenses Delivery of Check Insufficient Funds.

The making, issuance and delivery of a check on a bank in payment of a pre-existing debt, to his creditor, by one who has no funds or insufficient funds to his credit in such bank to pay the same, is not an offense under section 34, chapter 145, Code, a section added by chapter 76, Acts 1911. (p. 604).

(Lynch, Judge, absent.)

(Robinson, Judge, dissents.)

Error to Circuit Court, Tucker County.

Nick Pishner was convicted of crime, and brings error.

Reversed and Entered.

D. E. Cuppett. Charles I). Smith and J. P. Scott, for plaintiff in error.

A. A. Lilly, Attorney General, John B. Morrison, and J. E. Brown, Assistant Attorneys General, for the State.

Miller, Judge:

Defendant was indicted, tried and found guilty of a violation of section 34, chapter 145, Code 1906, a section added to that chapter by chapter 76, Acts 1911, and the judgment complained of was that he be confined in the penitentiary for one year.

The statute provides that, "If any person make, issue and deliver to another for value any check or draft on any bank, and thereby obtain from such other any credit, money, goods or other property of value, and have no funds, or insufficient funds, on deposit to his credit in said bank with which such draft or check may be paid, he shall be guilty of a misdemeanor, if the amount of such check or draft be under twenty dollars, and upon conviction thereof be fined not exceeding one hundred dollars and confined in the county jail not less than one day nor more than thirty days, and if the amount of such check or draft be

twenty dollars or over he shall be guilty of a felony and con- fined in the penitentiary not less than one nor more than two years, and the drawer of such check or draft shall be prosecuted in the county in which he delivers the same. Provided, however, that if the person who makes, issues and delivers any such check shall, within twenty days from the time he receives actual notice, verbal or written, of the protest of such check, pay the same, he shall not be prosecuted under this section, and any prosecution that may have been instituted within the time above mentioned, shall, if payment of said check be made as aforesaid, be dismissed at the cost of defendant."

The indictment, substantially in the form prescribed by this

statute, charges that defendant "on the day of,

nineteen and twelve, in the county aforesaid did unlawfully and feloniously issue and deliver unto Joe DePolla, for value, his certain check of the words and figures as follows: (describing a check for $240.56) when he, the said Nick Pishner had insufficient funds on deposit with said bank, The Miners & Merchants Bank with which to pay the same."

The undisputed evidence is that the check in question was given to DePolla on account of a pre-existing debt incurred at a general store kept by him.

There is clearly no merit in the constitutional question attempted to be raised.

The sole question of merit presented by the several rulings of the court below, on the evidence, and on the instructions to the jury given and refused, is, did the giving of the check in question, for a pre-existing debt, constitute a violation of the statute? Our opinion is that it did not. It is contended by the Attorney General that unless the statute be so construed a"s to affirm the proposition, it accomplished nothing, and was a useless enactment. True by section 23, of the same chapter one may be indicted and convicted of obtaining money or property by means of a false and fraudulent check given therefor, accompanied with the necessary knowledge and animo furandi. State v. Hurst, 11 W. Va. 54; Anaible v. Commonwealth, 24 Grat. 563, 567-8; Fayr. Commonwealth, 28 Grat. 912; Trogdon v. Commonwealth, 31 Grat. 862. Under that statute, according to these cases, it is necessary to allege and prove the essential elements constituting the offense, namely, (1) intent to defraud; (2) actual fraud; (3) false pretence used to accomplish the object, and, (4) that the fraud was accomplished by means...