State v. Scott

Decision Date20 August 1943
Docket Number6552
Citation140 P.2d 929,105 Utah 31
CourtUtah Supreme Court
PartiesSTATE v. SCOTT et al

Appeal from District Court, Fourth District, Utah County; Dallas H Young, Judge.

G. H Wilson and Robert Scott were convicted of making, drawing uttering, and delivering a check with intent to defraud a third party, knowing at the time that there were insufficient funds in or credit with bank for payment of check upon presentation thereof, and they appeal.

Reversed and remanded with directions.

J. Rulon Morgan, of Provo, and Elias Hansen, of Salt Lake City, for appellants.

Grover A. Giles, Atty. Gen., Herbert F. Smart, Deputy Atty. Gen., and William Stanley Dunford, Dist. Atty., of Provo, for respondent.

McDONOUGH, Justice. WOLFE, C. J., LARSON and MOFFAT, JJ., and CLARENCE E. BAKER, District Judge, concur. PRATT, J., on leave of absence.

OPINION

McDONOUGH, Justice.

The defendants G. H. Wilson and Robert Scott were convicted in the district court of making, drawing, uttering and delivering a check in the amount of $ 35 with intent to defraud Edith Burk, knowing at the time that Wilson did not have sufficient funds in or credit with the bank for payment of the check upon presentation thereof. The check is dated August 29, 1941, made by defendant Wilson and drawn on the Farmers' & Merchants' Bank, payable to the defendant Scott. In the lower left corner appears the notation, "Labor for tomatoes." Scott presented the check to Edith Burk who cashed it on Friday evening, August 29, 1941. The next day Wilson went to the place of business of Mrs. Burk, where he met her husband who was attending the place, and Wilson then and there informed Mr. Burk there were not sufficient funds in the bank to pay the check. Wilson then paid him the $ 35 in cash and received a receipt therefor, and was promised the check would be returned to him.

The defendants were prosecuted under 103-18-11, R. S. U. 1933, as amended by Chap. 29, Laws of Utah 1941, Second Special Session, (now 103-18-11, U. C. A. 1943). Under the provisions of said statute so amended, defendant Wilson was sentenced to nine months in the county jail, and defendant Scott was sentenced to a term of "not to exceed fourteen years" in the state prison. Both defendants appeal.

The amended statute, 103-18-11, U. C. A. 1943, makes the offense therein described "punishable by imprisonment in the county jail for not more than one year, or in the state prison for not more than 14 years." 103-1-13 defines a felony as "a crime which is or may be punishable with death, or by imprisonment in the state prison." Thus the offense described in 103-18-11, as amended, is a felony, because it is punishable by imprisonment in the state prison, even if such punishment is not inflicted by the court. Accordingly, a complaint was first filed in the city court, and defendants were bound over to stand trial in the district court where the district attorney filed an information on which defendants were tried and convicted.

By one of their assignments of error, defendants contend that Chap. 29, Second Special Session Laws of Utah 1941, is null and void because not constitutionally enacted, in that it was adopted in contravention of Article VII, Section 6, of the Constitution of Utah. Appellants allege said legislation was unconstitutional in its enactment for the reason that the Governor did not call to the attention of the Legislature the subject matter of said chapter. If said Chap. 29 is invalid, the prior law has not been repealed or modified, and the district court was not authorized by law to try the case in the first instance because the acts charged would amount to only a simple misdemeanor. State v. Florence, 79 Utah 200, 8 P.2d 621; State v. Ferguson, 83 Utah 357, 28 P.2d 175.

Article VII, Section 6, Constitution of Utah, provides:

"On extraordinary occasions, the Governor may convene the Legislature by proclamation, in which shall be stated the purpose for which the Legislature is to be convened, and it shall transact no legislative business except that for which it was especially convened, or such other legislative business as the Governor may call to its attention while in session. * * *" (Italics added.)

The Governor's proclamation calling the special session of the Legislature in question made no mention of the legislative subject matter contained in Chap. 29, Second Special Session Laws of Utah 1941; nor is there any other official record that the Governor ever called such business or subject matter to the attention of the Legislature while it was in special session. The only evidence of any communication to either house of said Legislature consists of an affidavit of the Governor received in evidence at the trial of this cause, wherein he stated that

"communications were had orally between members of the Senate of said Legislature and him, wherein he, as Governor of the State of Utah, authorized the consideration of said proposed legislation by said Special Session,"

and the fact that he signed the bill after the session had ended. There is no claim that the Governor even had any oral communication with any members of the House of Representatives.

Did such oral communications between the Governor and individual members of the Senate constitute calling such legislative business to the attention of the legislature? In State v. Tweed, 63 Utah 176, 224 P. 443, 446, this court discussed the requirements of the Constitution in this regard. In that case the Governor did not mention the questioned legislative business in his proclamation calling the special session, but after the special session convened each house appointed a committee to determine the legislative business to be considered in that session and to bring the recommendations of the Governor before the Legislature in appropriate form for its consideration. The two committees held a joint meeting in which the Attorney General and the secretary to the Governor "laid before the committee certain bills which had been prepared by the Attorney General, or in the Governor's office in line with his recommendations touching the subjects embraced in his message to the Legislature." One of the bills laid before the two committees at said joint meeting was later enacted into the statute in question in that case. These facts appeared from the record kept by the Legislature, in a report made by the Senate committee.

In that case this court said:

"That the means that the Governor shall employ or the method he shall use to inform the Legislature what 'legislative business' shall be considered by it in addition to that stated in the proclamation are not defined in the Constitution. * * * the Governor is made * * * the sole judge of * * * how any additional matters to be considered by it shall be called 'to its attention.' Moreover, the constitutional provision is intended to leave the matter of special sessions of the Legislature in the Governor's hands to the end that he may have complete control * * * over the 'legislative business' that shall be considered by it. If such were not the case the Legislature might unduly prolong the special session to the detriment of the taxpayers."

This court held that the legislative business in question was sufficiently called to the attention of the Legislature in that case to meet the constitutional requirements.

The Tweed case, however, is distinguishable from the case at bar. In that case, the Governor, acting through his secretary and the Attorney General, met with the two committees, one appointed by each house, for the purpose of receiving from the Governor bills which he proposed to be enacted in that session. There was handed to those committees a bill covering the legislative business in question. The Senate...

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6 cases
  • People v. Katzman
    • United States
    • California Court of Appeals Court of Appeals
    • February 13, 1968
    ...does tend to show that no fraud was intended. (Accord: People v. Dubrin, 232 Cal.App.2d 674, 679, 43 Cal.Rptr. 60; State v. Scott, et al., 105 Utah 31, 140 P.2d 929, 932; State v. Mason, 62 Mont. 180, 204 P. 358; State v. Johnson, 195 N.C. 506, 142 S.E. The crimes charged against Sahati are......
  • State v. Johnson, 54926
    • United States
    • Iowa Supreme Court
    • April 13, 1972
    ...to show that the accused had entered into the transaction involved in good faith and without an intent to defraud.' State v. Scott, 105 Utah 31, 140 P.2d 929, 932, is cited in 35 C.J.S. False Pretenses § 51c, as support for this statement appearing in the footnote of that 'In prosecution fo......
  • Andrus v. Turner
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • February 6, 1970
    ...prisoner for a term in the county jail not to exceed one year. State v. Alexander, 15 Utah 2d 14, 386 P.2d 411 (1963); State v. Scott, 105 Utah 31, 140 P.2d 929 (1943). It is not uncommon for criminal statutes to define crimes affecting the property of others as felonies and to fix punishme......
  • Lundgren v. Turner, C 235-69.
    • United States
    • U.S. District Court — District of Utah
    • October 28, 1969
    ...whether the maximum penalty which the trial judge is authorized to impose is imprisonment in the state penitentiary. State v. Scott, 105 Utah 31, 140 P.2d 929 (1943). See also, Utah Code Ann. § 76-1-13 (1953). Secondly, the Utah Supreme Court holds that the trial judge has the discretion to......
  • Request a trial to view additional results

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