State v. Vandenburg

• Decision Date: 22 April 1938
• Citation: 39 Del. 320,198 A. 701
• Court: Court of General Sessions of Delaware
• Parties: STATE v. JOHN T. VANDENBURG

198 A. 701

39 Del. 320

STATE v. JOHN T. VANDENBURG

Court of General Sessions of Delaware, Sussex County

April 22, 1938

Court of General Sessions for Sussex County, April Term, 1938.

Motion to quash indictment.

The defendant was indicted under Section 5218, Rev. Code, 1935 prohibiting the issuance of worthless checks. The indictment was in two counts, the sole difference being that, in the first count, the defendant was charged with making and drawing a check, while in the second count the charge was that he uttered and delivered a check. The counts alleged intent to defraud and knowledge that the defendant "as the maker thereof had not sufficient funds in the said * * * bank for the payment of said check in full upon its presentation."

The statute, under which the indictment was framed, is as follows:

"Any person who, with intent to defraud, shall make or draw, or utter or deliver, any check, draft or order for the payment of money, upon any bank or other depositary knowing at the time of such making, drawing, uttering or delivering that the maker, or drawer, has not sufficient funds in, or credit with, such bank or other depositary for the payment of such check, draft or order, in full, upon its presentation, shall be guilty of a misdemeanor, and punishable by imprisonment for not more than one year, or by a fine of not more than one thousand dollars, or both fine and imprisonment.

"As against the maker or drawer thereof, 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, such bank or other depositary; Provided, such maker or drawer shall not have paid the drawee thereof the amount due thereon, together with all costs and protest fees, within ten days after receiving notice that such check, draft or order has not been paid by the drawee.

"The word 'credit' as used herein shall be construed to mean an arrangement or understanding with the bank or depositary for the payment of such check, draft or order."

The defendant moved to quash the indictment for the reasons, 1 that it contained no allegation that the defendant failed to provide credit for the payment of the check; 2. that it contained no allegation that the defendant failed to pay the drawee the amount due on the check together with all costs and protest fees within ten days after receiving notice that the check had not been paid by the drawee.

The indictment is quashed.

Caleb M. Wright, Deputy Attorney-General, for the State.

Frederick P. Whitney for the defendant.

LAYTON C. J., and SPEAKMAN, J., sitting.

OPINION

LAYTON, C. J.

The statute was designed to protect the public against a species of cheat. The evil of drawing and issuing checks on banks in which the drawer has no funds, or insufficient funds, has long been recognized, and, from time to time, statutes in varying forms have been enacted. In this, as, perhaps, in other states, it has been a matter of some difficulty to frame an act sufficiently adequate for the protection of the public against those fraudulently disposed, and, at the same time, to exclude from its operation, those innocent of an intent to defraud.

The first statute, Chapter 265, Vol. 21, pt. 2, Del. Laws, made it a misdemeanor for one knowingly to issue a bad or worthless check for any valuable consideration, with the proviso that the act should not apply to overdrawing a bona fide account. By Chapter 282, Vol. 27, Del. Laws, the inhibition was directed against the issuance, knowingly and fraudulently, of a check on an overdrawn account. By Chapter 242, Vol. 28, Del. Laws, it was made a misdemeanor to issue knowingly a check on an overdrawn account, or on a bank where the drawer had no account. These Acts, doubtless, were regarded as inadequate. By Chapter 237, Vol. 34, Del. Laws, the existing law was enacted.

The word "funds", abstractly, is of broad significance but, in general acceptation and signification, it...