State v. Yarboro

• Decision Date: 09 November 1927
• Docket Number: 80.
• Citation: 140 S.E. 216,194 N.C. 498
• Parties: STATE v. YARBORO.
• Court: North Carolina Supreme Court

140 S.E. 216

194 N.C. 498

STATE v. YARBORO.

No. 80.

Supreme Court of North Carolina

November 9, 1927

Appeal from Superior Court, Halifax County; Grady, Judge.

O. Y Yarboro was convicted of violating an act to prevent the giving of worthless checks (Pub. Laws 1927, c. 62). A motion in arrest of judgment was granted, and the State appeals. Reversed.

Brogden and Clarkson, JJ., dissenting.

The defendant was indicted and convicted of a breach of the following statute, which was ratified March 2, 1927:

"An act to prevent the giving of worthless checks.

Whereas the common practice of giving checks, drafts, and bills of exchange, without first providing funds in or credits with the depository on which the same are drawn, to pay and satisfy the same, tends to create the circulation of worthless paper, overdrafts, bad banking, and check kiting and a mischief to trade and commerce: and it being the purpose of this act to remedy this evil,

The General Assembly of North Carolina do enact:

Section 1. It shall be unlawful for any person, firm or corporation, to draw, make, utter or issue and deliver to another, any check or draft on any bank or depository, for the payment of money or its equivalent, knowing at the time of the making, drawing, uttering, issuing and delivering such check or draft as aforesaid, that the maker or drawer thereof has not sufficient funds on deposit in or credit with such bank or depository with which to pay the same upon presentation.

Sec. 2. That any person, firm or corporation violating any provision of this act shall be guilty of a misdemeanor.

Sec. 3. That the word 'credit' as used herein shall be construed to mean an arrangement or understanding with the bank or depository for the payment of any such check or draft.

Sec. 4. That chapter fourteen of the Public Laws of nineteen hundred and twenty-five, be and the same is hereby repealed.

Sec. 5. That this act shall be in full force and effect from and after its ratification.

Ratified this the 2nd day of March, A. D. 1927." Public Laws 1927, c. 62.

After verdict, the defendant moved in arrest of judgment. The motion was allowed, and the state appealed.

D. G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

Ben T. Holden and White & Malone, all of Louisburg, for appellee.

ADAMS J.

On March 22, 1927, the defendant drew a check on the Farmers' & Merchants' Bank, of Louisburg, payable to the order of George C. Green in the sum of $100, which was to be credited on a fee charged the defendant for services rendered in part and in part to be rendered by the payee in the capacity of an attorney at law. When he delivered the check, he assured the payee that it would be paid when presented at the bank. On the same day, for a similar consideration, he gave a check to W. H. Yarboro. He had no money on deposit and no understanding or arrangement with the bank for the payment of these checks, and for this reason when presented they were returned unpaid. Thereafter the defendant was indicted for a breach of the statute set out in the statement of facts. At the trial he declined to introduce evidence, and, after the state had rested its case, he moved to dismiss the action. This motion was denied, and he was convicted. Upon return of the verdict, he moved in arrest of judgment on the ground that the indictment charged no criminal offense; and, the court being of opinion that the statute denounces as a crime the mere nonpayment of a debt without any finding of fraud or false pretense and conflicts with article 1, § 16, of the Constitution, granted the defendant's motion and arrested the judgment. The state excepted and appealed. C. S. § 4649.

Under the general rule that judgment may be arrested only for errors which appear on the face of the record, it may be granted that an indictment charging the breach of a statute enacted in disregard of a positive constitutional inhibition manifests such error as will justify refusal to pronounce judgment in case of conviction. The principle is that everything charged in the indictment may be true and yet no criminal offense may have been committed. State v. Watkins, 101 N.C. 702, 8 S.E. 346; State v. Marsh, 132 N.C. 1000, 43 S.E. 828, 67 L. R. A. 179. An unconstitutional law is void, and an act which it condemns is not a crime, because the organic law is essentially the supreme law. Ex parte Siebold, 100 U.S. 376, 25 L.Ed. 717; Huntington v. Worthen, 120 U.S. 97, 7 S.Ct. 469, 30 L.Ed. 588. But the statute in question is presumed to be valid. Every act of the Legislature is presumed to be in harmony with the Constitution, and all doubts are to be resolved in favor of its validity. This court has said that an act will be declared unconstitutional only when no reasonable doubt exists. State v. Moss, 47 N.C. 66; State v. Moore, 104 N.C. 714, 10 S.E. 143, 17 Am. St. Rep. 696; Coble v. Comm'rs, 184 N.C. 342, 114 S.E. 487.

"There shall be no imprisonment for debt in this state, except in cases of fraud." Const. art. 1, § 16. If the statute is in conflict with this prohibition, it cannot be upheld, for the manifest object of the section, first appearing in the Constitution of 1868, was the abolition of imprisonment for debt which had previously had legal sanction. The former law granted an execution against the body of the defendant in civil actions in which money only was recovered. It was not essential that fraud should be proved. The execution was a writ known as capias ad satisfaciendum, the office of which was to imprison the debtor until he had paid the debt, costs, and damages. If he had property when he was taken into custody, he could surrender it; if he had none, he could take the oath of an insolvent. Laws 1773, c. 4; Const. 1776,§ 39; Revised Code, c. 59; Burton v. Dickens, 7 N. C. 103; Jordan v. James, 10 N.C. 110; Crain v. Long, 14 N.C. 371; McNair v. Ragland, 17 N.C. 42, 22 Am. Dec. 728; Griffin v. Simmons, 50 N.C. 145. The constitutional provision of 1868 was intended to annul the old law and to interdict imprisonment for debt except in cases of fraud. It has been said that the framers of the Constitution, in forbidding imprisonment for debt, referred to the cause of action as being ex contractu, and thereby implied that imprisonment is not forbidden in every civil action, but may be allowed in actions which are not for debt. Moore v. Green, 73 N.C. 394, 21 Am. Rep. 470; Long v. McLean, 88 N.C. 3. The section was aimed primarily at the law which gave the right of execution against the body of the defendant in civil actions; and, if it be granted that it extends to and forbids criminal prosecutions for simple breach of contract, still we are convinced that error was committed in arresting the judgment.

At common law a fraudulent act was prosecuted as a crime only when it was calculated to defraud a number of people, and for this reason statutes were enacted in England to punish a variety of frauds not previously punishable. Some of these statutes, re-enacted here, have been united with the body of our criminal law. Section 4277 of Consolidated Statutes, which denounces as a felony the intentional obtaining of property by false tokens or other false pretenses, was derived from 33 Henry VIII, c. 1, and 30 George II, c. 24. State v. Phifer, 65 N.C. 321. Under this statute and others similar to it the person defrauded must have parted with something of value, as exemplified by a sequence of opinions from State v. Simpson, 10 N.C. 621, to State v. Roberts, 189 N.C. 93, 126 S.E. 161. To this group may be referred the frauds within contemplation of the constitutional provision heretofore set out-a conclusion which we venture to say may reasonably be deduced from several of our own decisions. The phrase "in cases of fraud" qualifies the word "debt"; it signifies fraud in making the contract or in attempting to evade performance by the fraudulent concealment or disposition of property or other fraud devised for the purpose of defeating collection of the debt. In Melvin v. Melvin, 72 N.C. 384, "fraud," as used in section 16, supra, was defined by Chief Justice Pearson as:

"Fraud in attempting to hinder, delay, and defeat the collection of a debt by concealing property and other fraudulent devices, *** fraud in making the contract, false representations for instance, and fraud in incurring the liability, for instance, when an administrator commits a fraud by applying the funds of the estate to his own use, paying his own debts, and the like."

And in Moore v. Mullen, 77 N.C. 327:

"It is clear that the words 'except in cases of fraud' are evidently used in a very restricted sense, such as fraud in procuring a contract to be made, or fraud in attempting to evade performance-as by concealing property, or by attempting to run it out of the state, or by making a fraudulent disposition of it."

See Powers v. Davenport, 101 N.C. 286, 7 S.E. 747.

It may be conceded that the defendant perpetrated no fraud at the time he engaged the services of his attorneys, and that under the cases last cited he was not culpable in contracting the debt; but this does not imply that a fraudulent act cannot be made punishable as a crime unless it induces or results in simultaneous loss, or that imprisonment for breach of the statute in question is imprisonment for debt, or that the defendant in this action practiced no fraud in giving the check. It is necessary to keep in mind the distinction between cases in which present loss is caused by fraud in contracting the debt, punishable under the provisions of the English statutes which have been re-enacted here, and those in which there is subsequent fraud, disconnected with the inception of the debt and punishable under the general police power of the...