Brooks v. StateBrooks v. State
1. Former Code §13-9933 made it illegal to make, draw, utter or deliver a check and thereby "obtain any money, goods, or other property of value,” with intent to defraud and with knowledge that there are insufficient funds for payment. The present section, Code § 26-1704 (Ga. L. 1975, pp. 482, 483, as amended by Ga. L. 1977, pp. 1266, 1268) makes it illegal to make, draw, utter or deliver a check "in exchange for a present consideration of wages” with knowledge that it would not be honored by the drawee. Knowledge that because of insufficient funds the check will not be honored, in the second statute, is thus itself prima facie proof of intent to defraud. There is probably minuscule difference, if any, between delivery of *627 a check and obtaining property or money, in the first statute, and delivery of a check and obtaining a "present consideration” in the second. We accordingly use indiscriminately applicable case law, regardless of which "bad check statute” the indictment was drawn under.
2. The defendant’s husband answered an ad placed in the paper by the prosecutor, a petroleum products jobber, and as a result leased a Phillips 66 service station which he and his wife operated as Brooks’ Service Station. Anderson, the jobber, purchased products from Phillips 66 and left them for sale with various service stations, including that of defendant’s husband. He testified that Anderson Oil Company owned the gasoline with which the tanks were filled on a weekly basis; that title to the gasoline remained in the jobber until sold; that the inventory was replenished as needed; that collections for amounts sold were made at the end of the week by receiving the amount collected for gasoline sold less a commission.
The defendant wife, who prepared and signed the checks, was indicted in three counts for passing a worthless check, convicted on two, and acquitted on one. In no case was a relationship shown between the replenishing of the tanks and the giving of the check. "Code Ann. § 13-9933 involves a special form of cheating and swindling, and it must be proved that the party alleged to have been defrauded suffered loss resulting from its reliance on the defendant’s wrongful act as charged in the indictment.”
Hamilton v. State,
3. There is evidence by the defendant that on each occasion when a check was given to the prosecutor he was *628 told that it would not or was likely not to clear the bank, but could be run through again. Anderson admitted that he took one check after being told there were insufficient funds to clear it, but was unable to say which of the checks was involved. Since this case is being reversed on another ground, we do not pass on the enumeration of error contending that under these circumstances there was no evidence beyond a reasonable doubt as to any of the three counts.
Judgment reversed.