State v. Stout

• Decision Date: 13 November 1956
• Docket Number: No. 830,830
• Citation: 95 S.E.2d 639,142 W.Va. 182,59 A.L.R.2d 1154
• Court: West Virginia Supreme Court
• Parties: , 59 A.L.R.2d 1154 STATE of West Virginia v. H. V. STOUT. C. C.

Page 639

95 S.E.2d 639

142 W.Va. 182, 59 A.L.R.2d 1154

STATE of West Virginia v. H. V. STOUT.

C. C. No. 830.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 25, 1956.

Decided Nov. 13, 1956.

Syllabus by the Court.

1. Under Code, 58-5-2, this Court has no jurisdiction to determine a certified question of fact.

2. The specific acts of making, uttering and delivering a worthless check did not constitute a crime at common law.

3. Making, uttering and delivering a worthless check as payment on a pre-existing debt, where the maker receives no property or thing of value, is not a crime under Code, 61-3-39.

John G. Fox, Atty. Gen., Harold A. Bangert, Jr., Asst. Atty. Gen., for plaintiff.

Paul H. Kidd, Glenville, for defendant.

LOVINS, Judge.

The Circuit Court of Braxton County sustained a demurrer to an indictment which, omitting the formal parts, reads as follows:

'* * * on the 22nd day of September, 1954, Bower Mining Company and H. V. Stout were indebted unto J. G. Singleton in a sum of money in excess of One Thousand Dollars, ($1,000.), which said sum of money was at said time due the said J. G. Singleton from Bower Mining Company and H. V. Stout for labor performed and material furnished by the said J. G. Singleton to Bower Mining Company and H. V. Stout prior to the said 22nd day of September, 1954; that as a payment upon said indebtedness then and there owing to the said J. G. Singleton by Bower Mining Company and H. V. Stout the said H. V. Stout on said 22nd day of September, 1954, in the said County of Braxton did unlawfully and feloniously issue and deliver unto the said J. G. Singleton for value and with intent to defraud the said J. G. Singleton, his certain check of the words and figures following:

Number 188

Bower Mining Company

Payment on Dozer work

Lost Creek, W. Va.

Sept. 22, 1954

Pay to The Order of J. G. Singleton .. $1000.00

One Thousand and no/100 ............... Dollars

The Harrison County Bank

Lost Creek, W. Va.

Bower Mining Company

H. V. Stout

When he, the said H. V. Stout then and there knew that neither he, nor the said Bower Mining Company had sufficient funds on deposit in or credit with the said The Harrison County Bank of Lost Creek, West Virginia, with which to pay said check * * *'.

The defendant demurred to the indictment on the grounds that the issuance of the check was not a violation of common law or statute.

The Circuit Court sustained the demurrer and certified to this Court the following question:

'* * * the following points of law or fact have been made: That the making, issuance and delivery of a check on a bank in payment of a preexisting debt to his creditor by one who had no funds, or insufficient funds, to his credit in such bank to pay the same, as alleged in said indictment, is not a violation of law, either at common law or by statute.'

The questioned certified as above quoted impliedly submits a question of fact. This Court has no jurisdiction to determine a question of fact on certificate. Under Code, 58-5-2, only '* * * question arising upon the sufficiency of a summons or return of service, or challenge of the sufficiency of a pleading * * *', may be certified. State v. De Spain, 139 W.Va. 854, 81 S.E.2d 914. See Van Gilder v. City of Morgantown, 136 W.Va. 831, 68 S.E.2d 746; Clayton v. County Court, 96 W.Va. 333, 123 S.E. 189; Jones v. Main Island Creek Coal Co., 82 W.Va. 506, 96 S.E. 797; City of Wheeling v. Chesapeake & Potomac Telephone Co., 81 W.Va. 438, 94 S.E. 511.

The certified question calls for two answers: (a) Was there liability at common law? (b) Is there liability under the present statute?

A check or bill of exchange arose from the custom or dealings of merchants. A check given by a resident of the state to another resident of the same date, and drawn on a bank situate therein, is an inland bill of exchange. Others are foreign bills of exchange.

The law merchant was gradually incorporated into the common law of England. 7 Am.Jur., Bills and Notes, Sections 13-14.

Prior to the enactment of 30 Geo. II, Chapter 24, § 1, obtaining money or property by means of false pretense, being somewhat analogous to obtaining money or property by a worthless check, was prosecuted under the general designation of a 'cheat'. Williams v. The Territory, 13 Ariz. 27, 108 P. 243, 27 L.R.A.,N.S., 1032. The English statute above mentioned made it a crime to send or deliver a writing with or without names subscribed thereto for the purpose of obtaining from a person money, goods, wares or merchandise with intent to cheat or defraud. See Volume 22, Statutes at Large, years 1757-1759, page 114. So far as we have been able to ascertain, there was no liability at common law for the specific act of making and delivering a worthless check.

Chapter 76, Acts of the Legislature, 1911, Regular Session, denounced as a crime the issuance and delivery of a worthless check. The pertinent portion of that statute provided in substance that if any person made, issued and delivered to another person for value any check or draft on any bank and obtained from such other any credit, money, goods or other property of value, and having no funds or insufficient funds on deposit to his credit in said bank with which said check could be paid, should be guilty of a misdemeanor if the check was under $20.00; and if in excess of $20.00, the maker should be guilty of a felony. Other provisions not pertinent appear in Chapter 76 idem. In the case of State v. Pishner, 72 W.Va. 603, 78 S.E. 752, the statute passed in 1911 was considered and this Court in the Pishner case held that '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 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.' Chapter 76, Acts of the Legislature, 1911, Regular Session, was amended and reenacted by Chapter 41, Acts of the Legislature, Regular Session, 1929 (Code, 61-3-39). The Act as it now reads provides in part that:

'Any person who, with intent to defraud, shall make, draw, issue, utter or deliver to another any check, draft or order for the payment of money upon any bank, or other depository, and thereby obtain from such other any credit, credit on account, money, goods or other property or thing of value, * * *' [emphasis supplied] shall be guilty of a misdemeanor if the check or draft or order be under $20 or shall be guilty of a felony if the amount of such check, draft or order is $20 or over.

The statute goes on to define punishment for the crimes so denounced. Provision is also made for the payment of such check, draft or order and it is further provided that the person making, issuing, uttering, and delivering such draft or order on behalf of the corporation or in its name by any officer or agent shall subject the officer or agent to the penalties provided in the statute. The statute further provides for venue which is not material to the discussion in this opinion.

The form of the indictment for giving a worthless check will be found in Code, 62-9-15, as amended by Chapter 60, Acts of the Legislature, 1953,...