Willis v. State

• Decision Date: 24 June 1954
• Docket Number: No. 172,172
• Citation: 106 A.2d 85,205 Md. 118
• Parties: WILLIS v. STATE.
• Court: Maryland Court of Appeals

Page 118

205 Md. 118

106 A.2d 85

WILLIS v. STATE.

No. 172.

Court of Appeals of Maryland.

June 24, 1954.

Louis H. Cohen, Silver Spring (Samuel Gordon, Silver Spring, and Gordon & Cohen, Baltimore, on the brief), for appellant.

Ambrose T. Hartman, Asst. Atty. Gen. (Edward D. E. Rollins, Atty. Gen., and Walter W. Dawson, State's Atty. Montgomery County, Rockville, on the brief), for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

DELAPLAINE, Judge.

Charles M. Willis, a building contractor, of Montgomery County, was convicted by the Circuit Court for Montgomery County of obtaining four loads of concrete from Maloney Concrete Company, Inc., a Delaware corporation, by false pretense. He has appealed here from the judgment of conviction.

The indictment charged that on May 12, 1953, defendant, by a false pretense made to Lewis Armstrong, which was not 'a mere promise for future payment not intended to be performed,' obtained from Maloney Concrete Company, Inc., 20 cubic yards of concrete of the value of $285.60, the property of that corporation, with intent to defraud.

Defendant applied to the State's Attorney for Montgomery County for the names of the witnesses he intended to call and also a statement of the false pretense intended to be given in evidence. In compliance with defendant's application, the State's Attorney furnished him the names of five witnesses and a statement that the false pretense intended to be given in evidence was a check for the sum of $285.60, drawn on May 12, 1953, on the Farmers Banking and Trust Company of Montgomery County, payable to Maloney Concrete Company, Inc., and signed by defendant at the time of delivery of the last load of concrete.

Defendant pleaded not guilty and was tried before the Court without a jury. The first witness called by the State, Charles P. Maloney, Jr., vice president of the concrete company, testified that defendant's order for the concrete was received by telephone at the company's plant at Rockville on May 13, 1953, and the record in his office indicated that the concrete was delivered C. O. D. It was undisputed that four truck loads of concrete, each containing five cubic yards, were delivered that afternoon to defendant at his building site on Aspen Hill Road.

The State also produced Lewis Armstrong, one of the truck drivers, who presented the four delivery tickets to defendant after delivering the fourth load. On the fourth ticket were the letters 'C. O. D.' Armstrong testified that defendant walked to the side of an automobile, wrote a check for the amount shown on the tickets, and handed him the check without comment. It was undisputed that the check was dated May 12 but that it was actually written on May 13.

The State further showed that Armstrong delivered the check to the company's office upon his return to the plant, and the check was deposited in bank within two days. About one week later the check was returned unpaid with the notation 'Insufficient funds.'

Defendant swore that he had no intention of defrauding the company, but that on the contrary he thought he had enough money on deposit in his account at the Farmers Banking and Trust Company to cover the check. He stated that about a week later, when William R. Feeney, one of the salesmen for the company, came to see him, he found that he had a balance of only a few dollars in his account. He explained to the Court that in May, 1953, he was building 51 houses, and that he had ample equity therein to enable him to pay the bill, but that he had made an error in figuring his balance on deposit. It was conceded that after he was arrested, but before his preliminary hearing, he paid the full amount of the check.

Defendant moved for a directed verdict of acquittal, but the trial judge overruled his motion, and found him guilty and sentenced him to be confined in the Maryland House of Correction for a period of three months.

The original False Pretense Act, enacted by the Maryland Legislature in 1836, provides as follows:

'Any person who shall be any false pretense obtain from any other person any chattel, money or valuable security, with intent to defraud any person of the same, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to be punished by fine and imprisonment, or by confinement in the penitentiary for not less than two years nor more than ten years, as the court shall award; * * * and provided also, that a mere promise for future payment, though not intended to be performed, shall not be sufficient to authorize a conviction under this section. * * *' Laws 1835, ch. 319, Code 1951, art. 27, § 165, as amended by Laws 1953, ch. 197.

In order to convict an accused on the charge of obtaining money or property by false pretenses, the State must show that there was a representation of an 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 or property by the person committing the fraud to the loss of another. Simmons v. State, 165 Md. 155, 167 A. 60.

Thus, in State v. Bundrock, 49 S.D. 483, 207 N.W. 484, where the accused had purchased goods which he received in two separate deliveries and gave a worthless check after the second delivery, convering both deliveries, the Court held that he was not guilty of the statutory crime of obtaining property by false pretenses, because he did not induce the vendor to part with the goods in reliance upon any false representation.

At the trial in the Court below defendant claimed that the indictment charged a violation of Section 165 of Article 27 of the Code, the original False Pretense Act. The State, on the contrary, claimed that the indictment charged a violation of the Worthless Check Act.

The Worthless Check Act, which was originally enacted by Chapter 281 of the Laws of 1914, and finally re-enacted by Chapter 483 of the Laws of 1941, is codified in Section 167 of Article 27 of the Code. This Act provides that any person who, with intent to cheat or defraud another, shall obtain money, credit, goods or anything of value by means of a check drawn on any bank not indebted to the drawer, or where the drawer shall not have provided for the payment, and the same be not paid upon presentation, shall be deemed to have obtained such money, credit, goods or things of value by means of a false pretense. The Act expressly declares that the giving of such a check shall be prima facie evidence of intent to cheat or defraud, provided that if such person shall be a bona fide resident of the State of Maryland and shall within ten days thereafter deposit with the drawee of the check funds sufficient to meet the same, with all costs and interest which may have accrued, he shall not be prosecuted under this Act.

It was obviously because of the difficulty so frequently encountered in proving fraudulent intent that the Legislature provided in the Worthless Check Act that the giving of a worthless check raises a prima facie presumption of an intent to defraud. In a prosecution under this Act the burden is on the accused to show that he had no intent to defraud, and the presumption may be rebutted by proof of proper facts negativing a fraudulent intent.

Under the law of Maryland a violation of the original False Pretense Act and a violation of the Worthless Check Act are separate and distinct criminal offenses. We recognize, however, that although a worthless check was given in a fraudulent transaction, the State may prosecute under the original False Pretense Act. In Lyman v. State, 136 Md. 40, 50, 109 A. 548, 552, 9 A.L.R. 401, the Court recognized the difference by pointing out that no prosecution, by indictment or otherwise, for violation of the Worthless Check Act may be commenced until after the expiration of the period of ten days. Judge Pattison, speaking for the Court, there said: 'In that time opportunities of escape would be afforded the offender, and in many instances he, by reason of such delay, would evade prosecution, although it could have been shown * * * that he had made in connection with the giving of such worthless check many false statements as to existing facts, clearly showing an intent to cheat and defraud.'

Article 21 of the Maryland Declaration of Rights guarantees that in all criminal prosecutions every...