17 Ga. App. 811 | Ga. Ct. App. | 1916
The accused was convicted of a violation of what is commonly known as the “worthless-check act” of 1914 (Acts 1914, p. 86; Park’s Annotated Code, vol. 6, § 718 (d) ). The statute declares that “any person who shall draw and utter any check, draft, or order for present consideration upon a bank, person, firm or corporation with which such drawer has not at the time sufficient funds to meet such check, draft, or order, and shall thereby obtain from another money or other thing of value, or induce such person to postpone any remedy he may have against such drawer, shall be guilty of a misdemeanor, and upon conviction shall be punished as prescribed ill section 1065 of this Code; provided, that if such drawer shall deposit with such drawee of such paper, within thirty days thereafter, funds sufficient to meet such cheek, draft, or order together with interest which may have accrued, there shall be no prosecution under the provisions of this act.” The evidence shows that the prosecutor, Hester, in November, 1914, lent the defendant $10, taking a mortgage upon a cow as security. About two weeks later the defendant went to Hester with a check for $18, drawn by B. J. Reese and payable to the defendant, and wanted the prosecutor to cash it and take out the $10 he had previously advanced the defendant. ' The prosecutor cashed the check and gave the defendant the difference. The prosecutor then sent the check to the bank at Guyton on which it was drawn, and it was returned to him unpaid, payment having been stopped by the drawer. The prosecutor then went to the defendant and told him the check was “no good,” and the defendant promised to make it good by paying him back the money. From time to time the prosecutor asked the defendant for the money, and, as related by the prosecutor, he always promised to pay the prosecutor back, but “never had the
• The defendant’s statement at the trial did not differ materially from the testimony of the prosecutor, though the defendant stated that he expressly told the prosecutor, at the time the prosecutor asked him for the check which is the basis of the prosecution, that he did not have any money in the bank to check on, and that the prosecutor stated to him that it would be all right for him “to date the check ahead and give it to him,” and he (the prosecutor) would then have a showing for what the defendant owed him; that he wanted a check or a note to show that the defendant owed, him; and “I could give him the check and date it ahead and he would hold that, and agreed that if I did not have any money in the bank when it came due, he would hold it.” The defendant, according to his statement, further told the prosecutor that he might not be able to have the money in the bank to meet the cheek, and the prosecutor said he would hold it, as he wanted it only as a showing that the defendant owed him. The prosecutor did not take the stand to deny the statement of the defendant as to the expressed intent with which the check was given, and the statement upon this point, though explanatory of the defendant’s intent, is not in conflict with any evidence introduced by the prosecution. The testimony of the prosecutor as to the giving 'of the post-dated check in payment of the past-due check of Reese which had not been paid was the only material evidence in the case, except the testimony of the State’s counsel, Mr. Heidt, who testified that he knew that “the defendant collected the money for the check from Reese that he traded to Hester, and that was the reason it was not paid at the bank.”
The statute now under consideration creates no such rule of presumptive evidence as does the “labor-contract act” of 1903 (Penal Code, § 716). Therefore it would not do to hold that mere proof that the defendant drew a post-dated check, even though it were for a present consideration, of itself raised a presumption that the defendant entertained an intent to defraud at the time the check was drawn. The attendant circumstances in a particular case might be such as to authorize the inference that the paper in question was in fact drawn or uttered with intent to defraud, and in such a case, if, by reasons of misrepresentation of any fact, past ot present, the drawee of the check was induced to accept it to his injury, the drawer might be guilty of cheating and swindling; but one who draws a post-dated check can not as a matter of law be said to entertain a fraudulent intent, since a post-dated check is one which by its very date informs all takers that the assurance
Judgment reversed.