47 Ga. App. 741 | Ga. Ct. App. | 1933
Clyde Driskell was convicted under an indictment charging that the accused, “with intent to defraud H. H. Bogers,” did “make, draw, utter, and deliver a certain check . . for the payment of . . $15, same bearing date of the 1st day of November, 1931, upon the Citizens Bank, same being a bank and depository in this State, the said defendant knowing at the time of such making . . and delivery of said check . . that he, the said defendant, the maker and drawer, had not then and there sufficient funds in or credit with said bank . . for the payment of said check . . in full upon its presentation.”
In the first place, we hold that there is no merit in the motion to dismiss the bill of exceptions; and we overrule the motion.
Since the brief of counsel for the plaintiff in error neither in
The indictment in this case was drawn under the "bad-check law” of 1924 (Ga. L. 1924, p. 194), which declares "that 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 upon its presentation, shall be guilty of a misdemeanor. The making, drawing, uttering, or delivering of such check, draft, or order as aforesaid shall be prima facie evidence of intent to defraud. The word ‘credit’ as used herein shall be construed to mean an arrangement or understanding with the bank or depository for the payment of such cheek, draft, or order.” The foregoing act is practically a reenactment of section 34 of article 20 of the act of 1919 (Ga. L. 1919, p. 135), which was declared unconstitutional in Corenblum v. State, 153 Ga. 596 (113 S. E. 159), because "it contains matter different from what is expressed in the title of the act.” In Berry v. State, 153 Ga. 169 (111 S. E. 669, 35 A. L. R. 370), the defendant was tried under the act of 1919, and the evidence showed that the cheek in question was given solely for a past-due loan, under the statement of the defendant that he had the money in the bank. In the Berry case this language appears (p. 174) : "By giving this cheek the defendant did not obtain from the payee any money, property, ox other thing of value. He did not deprive the payee of any right. Bank checks are not payment until themselves paid. Civil Code, § 4314. The acceptance of this check by the payee did not amount to a novation of the original contract. The purpose of the defendant in giving this check was not to deprive the payee of any right, money, property, or other thing of value, and he did not intend to defraud the payee in giving the same. His evident purpose was to escape the importunate duns of his creditor and to get a temporary respite therefrom.” The decision concludes as follows:
It will be observed that the uncontradicted testimony of the prosecutor was: “The defendant and I had been in the automobile repair business together, and this check represented what he owed me.” To our minds, this testimony strongly tends to show that the check was given for a past-due indebtedness; and this view is strengthened when Rogers’ testimony is considered in the light of that of the defendant’s witness Clay Driskell. At 'any rate, there is nothing in the' record which either shows, or tends to show, that in giving the check the defendant either deprived or intended to deprive the prosecutor of any right, money, property, or other thing of value. The intent to defraud was not shown, and the evidence does' not support the verdict. We hold that the trial judge committed reversible error in overruling the general grounds of the motion for a new trial. See Berry case, supra.
Judgment reversed.