State v. Vandenburg

• Decision Date: 06 October 1938
• Court: Court of General Sessions of Delaware
• Parties: STATE v. JOHN T. VANDENBURG

2 A.2d 916

39 Del. 498

STATE v. JOHN T. VANDENBURG

Court of General Sessions of Delaware, Sussex County

October 6, 1938

[Copyrighted Material Omitted]

Court of General Sessions for Sussex County, Indictment for making and issuing a worthless check, No. 16, June Term, 1938.

Case first heard on motion to quash the indictment.

The indictment against the defendant contained seven counts. Each count was based on a check for $ 1,331.25, dated August 26th 1936, drawn on The Caroline County Bank at Greensboro Maryland, to the order of Norman Collison, and signed by John T. Vandenburg; that check was set out in each count of the indictment.

The first count, also, alleged, in substance, that John T. Vandenburg, on the Twenty-sixth day of August, 1936, "did draw" a certain check on The Caroline County Bank of Greensboro, Maryland, for the payment of money to the order of Norman Collison "with intent to defraud the said Norman Collison"; the said John T. Vandenburg "well knowing at the time of drawing the said check" that he "did not have sufficient funds in or credit with the said The Caroline County Bank for the payment of said check in full upon its presentation".

The second count, in substance, also, alleged that John T. Vandenburg, on the Twenty-sixth day of August, 1936, "did make" a certain check on The Caroline County Bank of Greensboro, Maryland, for the payment of money to the order of Norman Collison "with intent to defraud the said Norman Collison"; the said John T. Vandenburg "well knowing at the time of making the said check" that he "did not have sufficient funds in or credit with the said The Caroline County Bank for the payment of said check in full upon its presentation".

The third count, also, in substance, alleged that John T. Vandenburg, on the Twenty-Sixth day of August 1936, "did utter" a certain check for the payment of money, drawn on The Caroline County Bank to the order of Norman Collison, "with intent to defraud the said Norman Collison"; the said John T. Vandenburg well knowing at the time of uttering the said check that he, the said John T. Vandenburg, "as the maker thereof did not have sufficient funds in or credit with the said The Caroline County Bank for the payment of said check in full upon its presentation".

The fourth count, also, in substance, alleged that John T. Vandenburg, on the Twenty-sixth day of August, 1936, "did deliver" a certain check for the payment of money drawn on The Caroline County Bank to the order of Norman Collison "with intent to defraud the said Norman Collison"; the said check being delivered to the said Norman Collison. The said John T. Vandenburg "well knowing at the time of delivering the said check, as aforesaid, that he * * *, as the maker thereof, did not have sufficient funds in or credit with the said The Caroline County Bank for the payment of said check in full upon its presentation".

The fifth count, also, in substance, alleged that John T. Vandenburg, on the Twenty-sixth day of August, 1936, "did make and draw" a certain check on The Caroline County Bank of Greensboro, Maryland, for the payment of money to the order of Norman Collison, "with intent to defraud the said Norman Collison"; the said check being endorsed by the said Norman Collison; the said John T. Vandenburg "well knowing at the time of making and drawing the said check, as aforesaid, that he, the said John T. Vandenburg, as the maker and drawer thereof, did not have sufficient funds in or credit with the said The Caroline County Bank for the payment of the said check in full upon its presentation".

The sixth count, also, in substance, alleged that John T. Vandenburg, on the Twenty-sixth day of August, 1936, "did utter and deliver" a certain check for the payment of money drawn on The Caroline County Bank of Greensboro, Maryland to the order of Norman Collison, "with intent to defraud the said Norman Collison, the said check being uttered and delivered to the said Norman Collison", and endorsed by the said Norman Collison. The said John T. Vandenburg "well knowing at the time of uttering and delivering the said check as aforesaid that he, the said John T. Vandenburg, as the maker thereof, did not have sufficient funds in or credit with the said The Caroline County Bank for the payment of said check in full upon its presentation".

The seventh count, also, in substance, alleged that John T. Vandenburg, on the Twenty-sixth day of August, 1936, "did deliver" a certain check for the payment of money, drawn on The Caroline County Bank of Greensboro, Maryland, to the order of Norman Collison "with intent to defraud the said Norman Collison, the said check being delivered to the said Norman Collison", and endorsed by the said Norman Collison. The said John T. Vandenburg "well knowing at the time of the delivering the said check, as aforesaid, that he, the said John T. Vandenburg, as the maker thereof, did not have sufficient funds in or credit with the said The Caroline County Bank for the payment of said check in full upon its presentation".

The defendant's attorney moved to quash the indictment:

1. Because none of the counts set forth all of the essential elements of the offense prescribed by the statute.

2. Because none of the counts alleged that the check, on which the indictment was based, was ever presented to a bank for payment.

3. Because none of the counts bring the accused precisely within the description of the offense, as defined in the statute.

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

Frederick P. Whitney for the defendant.

HARRINGTON J., sitting.

OPINION

HARRINGTON, J.

This case is before the court on a motion to quash the indictment. That indictment is based on Section 5218 of the Revised Code of 1935, and contains seven counts, the material allegations of which sufficiently appear in the statement preceding this opinion.

Section 5218 of the Revised Code of 1935, provides:

"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 * * *."

The same statute, also, provides "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 * * * within ten days after receiving notice that such check, draft or order has not been paid by the drawee".

It further provides "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".

"To defraud" means "to deprive of some right, interest or property by a deceitful device; to cheat; to overreach; * * *". Webster's New Inter. Dict.; Berry v. State, 153 Ga. 169, 111 S.E. 669, 35 A. L. R. 370; see, also, Cent. Dict.

And a "defrauder" is "one who defrauds; a cheat; a cozener; a peculator; a swindler". Cent. Dict.

As was pointed out by the Chief Justice on a motion to quash a prior indictment in this case (State v. Vandenburg, 9 W. W. Harr. (39 Del.) 320, 198 A. 701) the statute above quoted was intended to protect the public against "a species of cheat" [page 702], and an intent to defraud is the gravamen of the offense, provided for by it. See, also, Berry v. State, 153 Ga. 169, 111 S.E. 669, 35 A. L. R. 370; Commonwealth v. Hammock, 198 Ky. 785, 250 S.W. 85; see, also, Hughes v. Commonwealth, 230 Ky. 37, 18 S.W.2d 880.

Such an intent must, therefore, be properly alleged in an indictment, based on the statute.

Each count of the indictment attacked is based on a check, dated August 26th, 1936, for $ 1,331.25, alleged to have been drawn on The Caroline County Bank, at Greensboro, Maryland, to the order of Norman Collison, and signed by John T. Vandenburg, the defendant.

It is well settled that where the language of a statute describes an offense with sufficient particularity to give the defendant in an indictment based on it notice of the real nature of the charge against him, it is sufficient for the indictment to follow that language. State v. Donovan, 5 Boyce (28 Del.) 40, 90 A. 220; State v. Adair, 4 W. W. Harr. (34 Del.) 585, 156 A. 358.

But where the language of the statute does not so clearly set out the offense provided for by it, as to fairly notify the defendant in an indictment of the precise nature of the charge against him, it is equally well settled that other informative allegations are, also, necessary. State v. Donovan, 5 Boyce (28 Del.) 40, 90 A. 220, supra; State v. Adair, 4 W. W. Harr. (34 Del.) 585, 156 A. 358, supra.

Substantially in the language of the statute, the first and second counts of the indictment allege either the drawing or making of the check described therein by John T. Vandenburg to the order of Norman Collison; the intent to defraud Mr. Collison, and knowledge, on the part of the defendant, of the lack of funds in or credit with the bank on which it was drawn to pay it in full upon its presentation for payment. But the defendant's attorney points out that neither of these counts alleged the delivery by Vandenburg to Collison of the check alleged to have been drawn to his order, and therefore, contends that they do not charge a...