State v. Taylor

• Decision Date: 15 June 1934
• Docket Number: No. 32363.,32363.
• Citation: 73 S.W.2d 378
• Parties: STATE v. TAYLOR.
• Court: Missouri Supreme Court

73 S.W.2d 378

STATE v. TAYLOR.

No. 32363.

Supreme Court of Missouri, in Banc.

June 15, 1934.

Appeal from Circuit Court, Caldwell County; Ira D. Beals, Judge.

H. E. Taylor was convicted of issuing a check with knowledge that he had insufficient funds in or credit with bank for payment thereof, and he appeals.

Affirmed.

Randolph & Randolph, of St. Joseph, for appellant.

Roy McKittrick, Atty. Gen., and Wm. Orr Sawyers, Asst. Atty. Gen., for the State.

FITZSIMMONS, Commissioner.

Defendant was found guilty of issuing a check in payment of a past-due debt; he knowing at the time that he did not have sufficient funds in or credit with the bank upon which the check was drawn for the payment of the check. His punishment was a fine of $200. The offense charged is a misdemeanor under section 4305, R. S. Mo. 1929 (Mo. St. Ann. § 4305, p. 2998). Defendant by motions to quash the information and for a new trial, and by other timely objections, put into the case the question whether sections 4305 and 4306 (Mo. St. Ann. §§ 4305, 4306, pp. 2998, 2999) are in violation of section 16, article 2, of our State Constitution, which forbids imprisonment for debt. The presence of this question caused the appeal to be allowed to this court. The charge was laid in Daviess county. The case was tried in the circuit court of Caldwell county on change of venue. Defendant perfected his appeal, save that he did not file a brief in this court. In these circumstances we look to the motion for a new trial for assignments of error. State v. Ellis, 290 Mo. 219, 234 S. W. 845. The evidence offered by the state shows the following facts:

In the summer of 1930, the prosecuting witness, Fred E. Cooper, was a blacksmith and farm machinery salesman at Mabel in Daviess county. Defendant, Harold E. Taylor, was a farmer and resided about six miles northeast of Mabel, in De Kalb county. Taylor had one or more running accounts with Cooper. On one account Taylor alone was liable. The other account was in the name of Taylor and his mother. On or about June 26, 1930, Taylor and his wife entered Cooper's place of business at Mabel. Defendant Taylor wanted to buy twine as he was cutting grain. Cooper said he could not give Taylor any more credit until he made a payment on his account. The books were examined and Taylor was found to owe Cooper about $225. The parties then made an arrangement which was in accordance with a proposal of Taylor. By this arrangement Cooper sold Taylor 400 pounds of twine at 13 cents per pound, amounting to $54. Taylor and his wife executed and delivered to Cooper their promissory note for the whole account, including the twine. Taylor also executed and delivered to Cooper a check for $163.50 which he drew upon his account in the Winston Bank at Winston, in Daviess county. This check was to be in payment of the price of the twine and of half the old account. Taylor postdated the check July 20, 1930. The last-named date was a Sunday. On the following day, July 21, Cooper presented the check at the Winston Bank for payment. The assistant cashier refused to honor the check, for the reason that there were insufficient funds in Taylor's account. Cooper then drove to a field where Taylor was threshing wheat and informed Taylor of the nonpayment of the check. Taylor stated that Cooper should have presented the check to the cashier, with whom, Taylor said, he had a credit arrangement. Taylor then changed the date of the original check from July 20 to July 22, the next day, and gave it back to Cooper with a direction to present it to Mr. Black, the cashier, rather than to Mr. Manring, the assistant cashier of the Winston Bank. Instead, Cooper deposited the check on July 24, in a bank at Cameron, Mo., in which he had an account. The check was returned unpaid to the bank at Cameron on July 29. Cooper demanded payment of the check on the same day, July 29. But Taylor did not at any time make the check good. Mr. Black, cashier of the Winston Bank, a state witness, testified that Taylor did not have a credit arrangement with him to pay the Cooper check for $163.50 in any event. On July 26, Taylor had on deposit $4. On July 27, he made a deposit of $135. On that day there came to the Winston Bank checks of Taylor for $116, $4, and the Cooper check for $163.50. Black visited Taylor and inquired of him which of those checks the bank should pay, since the amount to Taylor's credit was not equal to the sum of all the checks. Taylor directed Black to be sure to pay the checks for $116 and $4 but that he, Taylor, did not care about the Cooper check. Accordingly Black marked the Cooper check unpaid on account of insufficient funds, and, on July 27, sent it back to the bank at Cameron through the channels by which it had come. Black also testified that if he had not been instructed by Taylor to pay the two smaller checks, he would have paid the Cooper check on July 27. Although that would have left an overdraft of about $30, Black knew that Taylor had more money coming in, and in fact he made substantial deposits within a few days after the return of the check. Taylor did not testify. Mrs. Taylor and other witnesses on behalf of defendant gave testimony tending to discredit the statement of Cooper that Taylor changed the date of the check to July 22, when Cooper visited him in the field on July 21. In other essentials the state's case was not discredited. The check set out in the information and offered in evidence was dated July 22, 1930. Other facts will be stated if necessary in the examination of assignments of error.

I. Defendant contends that the provisions of section 4305, R. S. Mo. 1929 [Mo. St. Ann. § 4305, p. 2998], making it a criminal offense to make, draw, or deliver a check for the payment of a past-due account when the maker of the check has not sufficient funds in the bank for the payment of same, violates section 16 of article 2 of the Constitution of the state of Missouri, because the provisions of the statute in effect impose a criminal offense upon a defendant who fails to meet a purely simple obligation for a debt, and therefore authorizes imprisonment for a debt in violation of the Constitution. The same objection was raised by the motion to quash. A like attack was made both in the motion to quash and the motion for a new trial on section 4306, R. S. Mo. 1929 [Mo. St. Ann. § 4306, p. 2999], which provides that the making, drawing, uttering, or delivering of a check, draft, or order, payment of which is refused by the drawee, shall be prima facie evidence of intent to defraud and of knowledge of insufficient funds in or credit with the bank, provided that the maker or drawer shall not have paid the drawee thereof the amount due thereon within five days after receiving notice that the check, draft, or order has not been paid by the drawee.

Section 16, article 2, of the Constitution, is as follows: "That imprisonment for debt shall not be allowed, except for the nonpayment of fines and penalties imposed for violation of law."

In our opinion sections 4305 and 4306, R. S. Mo. 1929 (Mo. St. Ann. §§ 4305, 4306, pp. 2998, 2999), do not impose imprisonment for debt in violation of the Constitution. In the instant case, by the verdict of the jury, a fine was assessed against the defendant, and, by the judgment of the court predicated upon the verdict, he was ordered committed to the custody of the sheriff pending the payment of the fine. The state also was awarded execution. The debt created by the verdict and judgment falls within the exception to section 16, article 2, for it is a fine for violation of law. As for the debt due upon open account from the defendant to Cooper, it is a thing wholly apart from the cause of defendant's liability to imprisonment. It is true that Cooper could bring a civil action against defendant either upon the open account or upon the dishonored check. But it is also true that well-nigh every criminal act, whether it be a felony or a misdemeanor, creates a civil liability of the wrongdoer to the wronged person. Yet this fact does not change or destroy the criminal nature of the overt act, or free the wrongdoer from the penalties imposed, however harsh they may be.

The part which checks play in the daily business, both large and small, of the American people, is such that any misconduct with respect to them calls for the just exercise by the state of its police power in the form of statutory penalties. This court so held in ruling that a statute imposing a penalty for maliciously throwing down fences was not a form of imprisonment for debt. Blewett v. Smith, 74 Mo. 404. The foregoing case was an action for false imprisonment. Defendant Smith proceeded against plaintiff Blewett before a justice of the peace under a trespass statute. There was judgment and an award of execution in favor of Smith and against Blewett, and subsequently an imprisonment of Blewett for failure to pay the judgment. The action for damages for false imprisonment followed. This court reversed the judgment below, which was rendered upon the theory that the trespass statute allowed imprisonment for debt. An observation of this court in that case is very pertinent here (74 Mo. loc. cit. 409): "There can be no question, if the proceeding against plaintiff had been by indictment to recover the penalties authorized by the act, instead of a civil proceeding by the party injured, that he would have been liable to imprisonment for the non-payment of any judgment which might have been rendered against him." So, too, in the instant case, the defendant, who was proceeded against by information, should be liable to imprisonment for the nonpayment of the judgment of fine against him, without benefit of the constitutional protection which he seeks.

In the Blewett Case too, this court, in upholding the trespass statute against the same constitutional defense which is made here, noted (74 Mo. loc. cit. 409) that the statute "was designed to...