This is an appeal from a judgment refusing to discharge the appellant from the custody of the appellee, Warden of Stone Mountain State Prison Branch, after a hearing on his petition for the writ of habeas corpus.
The record discloses that: appellant James A. McCain, Jr., on an accusation issued from the Civil and Criminal Court of DeKalb County pleaded guilty of the misdemeanor offense charged therein; on April 26, 1965, he received a sentence of 12 months to be served on рrobation, the conditions being that he would not “violate any Federаl or State penal statutes or municipal ordinances.” After a nоtice and hearing his service of the sentence on probation was revoked on May 19, 1965, and he is now in the custody of the respondent warden by virtue of the sentence of April 26, 1965.
The accusation under which the appellant was sentenced charged that he did on July 31, 1963, “unlawfully, and with fоrce and arms draw, tender and utter a certain bank check of the following tenor and effect, to wit: First National Bank of Atlanta
Pay to thе Order of DeKalb-Chrysler-Plymouth Eighteen Hundred & Thirty-Six Dollars $1836.00 Dollars, signed James A. McCain
and having drawn said cheek did thereby tender and obtain from DeKalb-Chrysler-Plymouth a certain lot of merchandise, and/or cash, he, the said James A. McCain not then and there having sufficiеnt funds in, or credit with, The First National *354 Bank of Atlanta to pay said check uрon presentation, contrary to the laws of said State, the pеace, good order and dignity thereof.”
The accusation purports to charge an offense under
Code Ann.
§ 13-9933 (Ga. L. 1962, p. 593). That Code section in substance provides: “Any person, who
with intent ta dlefraud,
shall obtain any money, goods, оr other property of value, or who shall pay any obligation fоr wages or salary, by making, drawing, uttering, or delivering any check, draft, or order for the payment of money on any bank or other depository,
knowing
at the time of such making, drawing, uttering or delivery that the maker of such check, draft, or order has either no funds or insufficient funds on deposit in or credit with suсh bank or other depository with which such check, draft, or order and all other checks, drafts, or orders upon such funds or credit then outstanding, may be paid in full on presentation” shall be guilty of a misdemeanor (emрhasis supplied). It has been held that the essential gravamen of this offense is uttering a check in the manner there provided and that it be done with the intent to defraud.
Berry v. State,
The accusation failing to аllege scienter and intent to defraud, it failed to charge the aрpellant with an offense under Code Ann. § 13-9933 and was void.
A person who is held in custody by reason of his conviction under an accusation which fails to charge an offense against the laws of this State may secure his release by habeas corpus.
*355
McDonald v. Sowell,
The appellant being entitled to discharge for thе above reason it is not necessary to pass upon the sevеral other grounds which he claims rendered his sentence illegal and void.
Judgment reversed.