Waye v. State, 262

• Decision Date: 04 June 1963
• Docket Number: No. 262,262
• Citation: 231 Md. 510,191 A.2d 428
• Parties: A. Lloyd WAYE, allas, Frank Marks, alias, Arthur Bevins, alias, David Brown v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 510

231 Md. 510

191 A.2d 428

A. Lloyd WAYE, allas, Frank Marks, alias, Arthur Bevins, alias, David Brown v. STATE of Maryland.

No. 262.

Court of Appeals of Maryland.

June 4, 1963.

William Carruth, Baltimore, for appellant.

Jacques E. Leeds, Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., William J. O'Donnell, State's Atty., and George J. Helinski, Asst. State's Atty., on the brief), Baltimore, for appellee.

Before BRUNE, C. J., and HAMMOND, PRESCOTT, MARBURY and SYBERT, JJ.

PRESCOTT, Judge.

Appellant was convicted, by a judge of the Criminal Court of Baltimore, sitting without a jury, of four separate offenses of obtaining money by false pretenses, and sentenced therefor.

The only question involved in, Was there sufficient evidence to support his convictions on all, or any, of the charges?

Although each of the offenses involved the cashing of a worthless check, all of the indictments were based on the Code (1962 Cum.Supp.), Article 27, § 140 (False Pretenses Act), and not upon § 142 (Worthless Check Act). And the surrounding facts and circumstances in three of the cases are so similar that we may set forth the facts on one case, and the conclusion reached therein will necessarily control the other two. The facts in the fourth case are likewise similar, with the exception that the check was drawn for $100.

The appellant presented his personal check in the amount of $85.00, dated May 23, 1962, payable to A. Lloyd Waye and signed A. Lloyd Waye to an employee of Hochschild Kohn & Company, at its place of business, and asked that it be cashed. (The assistant credit manager testified. He had no personal knowledge of the check's having been cashed, but stated what had transpired from notations on the check.) Waye was asked if he had any identification and he produced his 'voter's card.' Whereupon and without further ado, he was given $85.00 of the 'coin of the realm.' And the assistant credit manager testified that it was the 'practice' of his company to cash checks 'merely upon the showing of a driver's license or a voter's card'! The State also produced evidence to show that the accused admitted that he had 'passed' eleven other checks in the one week period during May of 1962. The twelve checks came back marked 'No funds.'

Thus, it is seen that we have a prosecution under § 140 (False Pretenses Act), and the evidence offered to sustain the conviction thereunder is a bank check drawn by the traverser and made payable to himself (a check which he undoubtedly knew was worthless), without any misrepresentation of a past or existing fact extrinsic to the check itself. The State acknowledges that under a charge of violating § 140 it must show 'there was a representation of a past or existing fact made with intent to defraud, and that the operation of such representation as a deception induced a transfer and the obtaining of the money by the person committing the fraud, to the loss of another.' But it earnestly urges that the giving of the worthless check, with knowledge of its worthlessness, in and of itself, constituted a false representation of an existing fact. The defense insists that there must be some representation aliunde the worthless check to sustain his conviction under § 140.

The specific acts of making, uttering and delivering a worthless check did not constitute a crime at common law, State v. Stout, 142 W.Va. 182, 95 S.E.2d 639, 59 A.L.R.2d 1154, Williams v. Territory, 13 Ariz. 27, 108 P. 243, 27 L.R.A.N.S., 1032. The False Pretenses Act (§ 140) was first enacted into law by Chapter 319 of the Laws of 1835. In a prosecution under this law, the burden of proof rests upon the State to establish an intent to defraud by the accused. In such cases, it was frequently difficult to prove actual intent to defraud when property had been obtained by means of a worthless check. By Chapter 281 of the Laws of 1914, the Worthless Check Act (§ 142) was enacted. This Act makes the giving of a worthless check, for value, prima facie evidence of an intent to cheat and defraud. This Court has held that the two statutes name separate and distinct criminal offenses, Willis v. State, 205 Md. 118, 125, 106 A.2d 85; and even though a worthless check is involved in a fraudulent transaction, the State may prosecute under the False Pretenses Act, Lyman v. State, 136 Md. 40, 50, 109 A. 548. Thus it is seen that when the prosecution is under § 142, the mere giving of a worthless check under the circumstances named in the statute raises a presumption of an intent to cheat and defraud. However, if the State elects to proceed under § 140 where a worthless check is involved, it must do so without the aid of any presumption and affirmatively establish an intent by the defendant to cheat and defraud. Willis v. State, supra; Levy v. State, 225 Md. 201, 170 A.2d 216; Marr v. State, 227 Md. 510, 177 A.2d 862.

We noted above that appellant earnestly presses his contention that there must be some false representation outside the worthless check, when the prosecution is under § 140. There is language in the opinions in Willis, Marr and Levy, all supra, that possibly can be construed as lending some support to this contention. However, the gravamen of the offenses described in both §§ 140 and 142 is an intent to cheat and defraud, and the present question posed by the appellant boils down, as we see it, more to a question of the weight of the evidence than to its sufficiency. In the instant case, the trial judge was satisfied with the State's evidence, and found as a fact an intent to cheat and defraud by the accused, as well as the other constituent elements of the offense charged. To support the finding of such intention, he had the check immediately involved and the fact that appellant had 'passed' it and eleven others within a period of seven days. And, although there is some division in the different jurisdictions upon the question of the necessity of making a false representation extrinsic to the worthless check (when the prosecution is brought under a general false pretenses act and not under a worthless check act), that the check is good or will be paid, in order to render criminal under a false pretenses act the obtaining of property by means of such check, the majority view holds that such representations are unnecessary. 22 Am. Jur., False Pretenses, § 57; 35 C.J.S. False Pretenses § 21; and annotations in 35 A.L.R. 347 et seq., and 174 A.L.R. 176. The majority view reasons that the giving of a worthless check, or a check which the accused has no reason to believe will be honored, is, in itself, a false pretense: the giving of such a check being a representation or symbol that the accused, or the drawer of the check, has money or credit with the drawee, to the amount of its face value. The evidence, as we outlined it above, was sufficient, we think, to support the trial court's finding of an intent by the...