White v. State

• Citation: 280 N.W. 433,135 Neb. 154
• Decision Date: 28 June 1938
• Docket Number: 30384
• Parties: THOMAS WHITE v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

280 N.W. 433

135 Neb. 154

THOMAS WHITE v. STATE OF NEBRASKA

No. 30384

Supreme Court of Nebraska

June 28, 1938

ERROR to the district court for Dawson county: ISAAC J. NISLEY JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

1. Where, in a prosecution had under section 28-1212 Comp.St.1929, a jury found from the evidence that no arrangement for payment in the future had been made by the maker of a postdated check with the payee thereof, said check being given in payment of certain live stock purchased from the payee, and the clerks of the payee accepted said check on behalf of the payee as a demand check in payment of the live stock, without noticing the date thereof, the intent to defraud is an essential element of the offense charged in section 28-1212, Comp.St.1929, which in part provides 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 depository, 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 depository for the payment of such check, draft or order, in full upon its presentation," etc. Under the circumstances as shown by the evidence in the instant case, the postdated check is within the contemplation of said section of the statute.

2. Section 28-1212, Comp.St.1929, states a complete offense, the essential elements of such offense and the penalty for violation thereof, and section 28-1213, Comp.St.1929, is not necessary to a prosecution under section 28-1212, said section 28-1213 covering purely matters of evidentiary character.

3. Intent to defraud may be proved by the circumstances surrounding the transaction. Evidence examined in the instant case, and found sufficient for submission of the offense as charged in section 28-1212, Comp.St.1929, to the jury.

4. Upon trial of an offense under section 28-1212, Comp.St.1929, evidence of other transactions, involving the giving by defendant on a preceding date of another check on the same bank to another party, is admissible for the purpose of showing his knowledge, at the time of giving the check in question, of the condition of his account in the bank, and to show guilty knowledge and intent to defraud in the making, uttering and delivering of such check.

5. Section 28-1212, Comp.St.1929, is not violative of section 20, art. 1 of the Constitution of Nebraska, which reads: " No person shall be imprisoned for debt in any civil action or mesne or final process, unless in cases of fraud." The intent to defraud is an essential element of the evidence, as contemplated by said section 28-1212.

Error to District Court, Dawson County; Nisley, Judge.

Thomas White was convicted of the offense of issuing a no fund or insufficient funds check, and he brings error.

Judgment affirmed.

Intent to defraud may be proved by circumstances surrounding a transaction.

M. O. Bates, for plaintiff in error.

Richard C. Hunter, Attorney General, Harry S. Grimminger, John G. Tomek, Elbert H. Smith and S. S. Diedrichs, contra.

Heard before ROSE, EBERLY, DAY, PAINE and MESSMORE, JJ., and KROGER, District Judge.

OPINION

MESSMORE, J.

Plaintiff in error (hereinafter called defendant) was convicted of the offense of issuing a no-fund or insufficient-funds check to the Stickelman Auction Sales Company of Gothenburg, Nebraska, on June 12, 1937, in the amount of $ 2,466.76. Motion for a new trial was overruled, and the court imposed sentence. The defendant was tried on one count which was proper in substance and form to bring the case to this court for review upon the alleged errors made by the trial court and the sufficiency of the evidence, as contended by defendant.

Defendant was engaged in dealing in live stock in various towns in Nebraska. In the latter part of October or the fore part of November, 1936, he contacted Ernest C. Stickelman, who was, and had been for the past 34 years, engaged in the live stock and commission business, and for the past six years in Gothenburg under the name of "Stickelman Live Stock Auction Sales Commission Company," as sole owner. The defendant testified that he told Mr. Stickelman that he desired to buy live stock at his sales barn and gave certain references, First National Bank of Boulder, Colorado, where he lived; that on numerous occasions subsequent to that date he purchased live stock ranging in amount from $ 300 to $ 800, at different sales. On the day in question, June 12, 1937, he purchased some 81 head of hogs and eight head of cattle, giving in payment therefor a check in the sum of $ 2,466.76. This check was dated "7/12 1937;" in other words, it was postdated. On the evening of June 12, 1937, defendant loaded the stock which he had purchased; it was shipped to Denver, Colorado, and disposed of early in the following week. The check in question was deposited for payment and returned for the reason that it was not yet due; that it would be due July 12, 1937. At the time the check was presented to the clerks at the sales barn, no statement was made by the defendant as to the check; it was received by a young lady, handed by her to another clerk, and subsequently to a third clerk, who placed it in a drawer, none of the clerks noticing the date of the check. Mr. Stickelman did not see the check at the time. Later, he and one Burke, who had had a similar experience just previously, journeyed to Boulder, Colorado, in search of the defendant, but were unable to locate him either in Boulder or in Denver, and, in fact, he was not located until arrested in Minneapolis, Minnesota, in September. On July 12, 1937, there were insufficient funds in the bank at Boulder to pay the check; the check was protested, and the check and protest thereof were turned over to the county attorney.

The defendant contends that the verdict of the jury is not sustained by sufficient evidence and is contrary thereto.

This prosecution was brought under section 28-1212, Comp. St. 1929, which reads in part 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 depository, 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 depository for the payment of such check, draft or order, in full upon its presentation, shall upon conviction, be punished," etc.

The defendant contends that the check in question is a postdated check and not within the contemplation of the above statute; that the statute contemplates a demand check, and that, at most, the check in the instant case is a promise to pay in the future and is analogous to a promissory note; that the record discloses no evidence that at the time of the issuance of the check the defendant had insufficient credit with or funds in the bank upon its presentation for payment, and that Stickelman, by not protesting the check until 30 days thereafter, July 13, acquiesced in extending credit to the defendant. Defendant contends that the gist of the offense is a failure to have sufficient funds or credit in the bank at the time of presentation, and that this check was returned by the bank because it was a postdated check.

Defendant cites cases holding to the effect that a postdated check is not within the purview of the statute making it an offense to draw a check without having sufficient funds with which to meet it. An analysis of most of the cases cited clearly indicates that the payee therein had an agreement with the maker to hold the check, thus creating a contractual relation to permit the maker to pay in the future, or the transaction was such that the holding of the check was a necessary incident by agreement of the parties. The payee having acquiesced in or agreed, there could be no intention to defraud. There are some cases cited which hold that a postdated check is not within the purview of the statute. We believe that this is not conducive to a logical conception, in view of the provisions of our statute and the circumstances of the instant case.

An examination of section 28-1212, Comp. St. 1929, indicates that it does not state "postdated check;" neither is the date of any instrument, as contained in the statute, given or required to be given. The principal ingredient of the offense is the intent to defraud.

The well-considered case of People v. Bercovitz, 163 Cal. 636, 126 P. 479, 43 L. R. A. n. s. 667, held that a postdated check was within the contemplation of the California statute which, in some particulars, is like the statute in Nebraska. In commenting on this point the court said in the body of the opinion (p. 638): "There is nothing in the language used having the effect of excepting a case from the operation of the statute merely because the 'check or draft' is postdated. It is essential, of course, that there should be on the part of one giving the check or draft both present knowledge of the insufficiency of funds and absence of credit with such bank, etc., to meet the check or draft in full upon its presentation, and an intent to defraud, but no reason is apparent why both of these elements may not exist as well in the case of a postdated check or draft as in the case of one bearing the date of its delivery." And, in considering the word "credit," which appears in the California and in the Nebraska statute, the opinion quotes that part of the statute as follows:...