Williams v. Territory of Arizona

• Decision Date: 02 April 1910
• Docket Number: Criminal 282
• Parties: S. J. WILLIAMS, Defendant and Appellant, v. TERRITORY OF ARIZONA, Respondent
• Court: Arizona Supreme Court

108 P. 243

13 Ariz. 27

S. J. WILLIAMS, Defendant and Appellant, v. TERRITORY OF ARIZONA, Respondent

Criminal No. 282

Supreme Court of Arizona

April 2, 1910

APPEAL from a judgment of the District Court of the Second Judicial District, in and for the County of Cochise. Fletcher M. Doan Judge. Affirmed.

STATEMENT BY THE COURT.

The defendant S. J. Williams was indicted by the grand jury of Cochise county for the offense of willfully, unlawfully knowingly and feloniously, and with intent to cheat and defraud one Frank Byrd of the sum of sixty dollars, by making, signing and delivering to said Frank Byrd, a certain false and bogus check upon the First National Bank of Douglas, Arizona. The said defendant issued a check on the said bank knowing, as he is charged in the indictment, that no funds were in the bank to his account to meet the check. The evidence showed that the check was signed by the true name of the defendant and was his genuine signature. After the territory had closed its case, the defendant moved for a directed verdict, which was denied, and went to trial. A verdict of guilty was returned, and after a motion for a new trial had been made and overruled, the court pronounced judgment upon the defendant, sentencing him to a term of three years' imprisonment in the territorial prison at Florence. To said judgment and the order denying a new trial the defendant excepted and prosecutes his appeal to this court.

Harry E. Pickett, for Appellant.

A check which bears the genuine signature of the maker thereof is a genuine check, even though it is worthless, and is not a "false and bogus check." Pierce v Illinois, 81 Ill. 98,

John B Wright, Attorney General, for Respondent.

OPINION

LEWIS, J.

-- The argument of counsel is addressed to the sole question: Is a check signed by the maker thereof, he never having had funds in the bank upon which such check was drawn, nor reason to believe that such check would be honored, a false and bogus check within the meaning of section 489 of the Penal Code of the Revised Statutes of 1901, providing: "Every person who, with intent to cheat and defraud, shall obtain, or attempt to obtain from any other person or persons, any money, property, or valuable thing whatever, by means or by use of any trick or deception, or false or fraudulent representation, or statement of [or] pretense, or by any other means or instruments, or device, commonly called the 'confidence game' or by means or by use of any false or bogus check, or by any other printed, written or engraved instrument, or spurious coin or metal, shall be deemed guilty of a felony. . . ." In this territory the rule of strict construction of penal statutes does not obtain. The provisions of the Penal Code are to be construed according to the fair import of their terms, with a view to effect its object and to promote justice. Rev. Stats. 1901, Penal Code, sec. 5. "Words and phrases must be construed according to the context and to the approved usage of the language." Penal Code, sec. 7, subd. 16; Miller v. Territory, 9 Ariz. 123, 80 P. 321. Section 489, under consideration, is one of a series of statutes embraced in chapter 8, title 13, of the Penal Code, denouncing certain false personations and frauds as crimes. At common law, and until the enactment of 30 George II, chapter 24, section 1, making criminal the obtaining of money or property by means of false pretenses, offenses somewhat analogous to these were prosecuted under the general denomination of cheats. However, the obtaining of money or property by means of a worthless check was not a cheat. "If a man induces another to part with goods by drawing and delivering in payment his check on a bank in which he keeps no account, he thus merely puts a falsehood in writing. The check is no token, and he is not indictable (for a cheat) at common law." Bishop's Criminal Law, sec. 147. "Under the subsequent statutes against obtaining money by false pretenses it has been held that the obtaining of money or property by means of a worthless check was a false pretense, and was indictable as such." 2 Bishop's Criminal Law, sec. 421. "The representation is inferred from the act, and the pretense may be made by implication as well as by verbal declaration. In the case at bar the defendant presented his own checks on a bank with which he had an account. What did this imply? Not necessarily that he had funds there. Overdrafts are too frequent to be classed with false pretenses. A check, like an order on an individual, is a mere request to pay. And the most that can be inferred from passing it is that it will be paid when presented, or, in other words, that the drawer has in the hands of the drawee either funds or credit. If the drawer passed a check to a third person, the language of the act is that it is good and will be duly honored. And in such case, if he knew that he had neither funds nor credit, it would probably be holden to be a false pretense." Commonwealth v. Drew, 19 Pick. (Mass.) 179-186. "Forgery at common law was but a common-law cheat, or attempt to cheat, set off from the rest and called by a separate name because of its special heinousness." 2 Bishop's Criminal Law, sec. 148.

Under the authorities the offense of obtaining money or property by means of a worthless check might be punished under section 481 of our Penal Code, declaring the obtaining of money under false pretenses a crime. This statute, however, makes the crime a mere misdemeanor. It is apparent from a consideration of the growth of the law of cheats that it was early deemed advisable to distinguish cheats by means of forged instruments as an independent crime, more heavily punishable as such. With the increasing use of checks, as a substitute for currency, the frequency and facility with which frauds were successfully perpetrated by means of the use of worthless paper attracted the attention of legislators. The mischief resulting from its issuance was hardly less than the evil ensuing from the utterance of forged paper. So long as the crime was a misdemeanor, the temptation to its commission was great. It, therefore, became desirable to place a heavier penalty upon crimes so perpetrated than upon those committed by means of other false pretenses. Section 489 is one of the class of statutes enacted for the purpose of meeting this evil. It fixes the penalty therefor somewhat less than that for forgery, but greater than that for obtaining money by other false pretenses.

In determining whether or not the statute accomplishes the intent of the legislature, we have to consider the meaning of the words "false" and "bogus." These words are not used in the conjunctive in the statute, and the meaning of each will be examined.

False: "Erroneous, untrue; the opposite of correct, or true; and often the term, as used, does not necessarily involve turpitude of mind. In the more important uses in jurisprudence, and even in its popular application, the word implies something more than a mere truth; it is an untruth coupled with a lying intent, or an intent to deceive or to perpetrate some treachery or fraud. The true meaning of the term must, as in other instances, often be determined by the context." 19 Cyc. 314; Am. & Eng. Ency. of Law, 661; Abbott's Law Dictionary; Webster's New International Dictionary; Century Dictionary.

A wide range of meaning has been given by the courts to this word.

False affidavit: "Includes one false in recitals of facts, though sworn to by a person really existent, under a statute making the presentation of an affidavit in support of a claim against the government a felony, where presented 'with intent to defraud by one knowing the same to be false, altered, forged, or counterfeit.'" United States v. Staats, 8 How. 41, 12 L.Ed. 979.

False affidavit: "Relates to the form of the paper, and is false though the officer administering the oath was not qualified nor the oath...