27 Ga. App. 177 | Ga. Ct. App. | 1921
Section 553 of. the Penal Code of 1910 provides that, “if any person shall buy any .of the products mentioned in the preceding section [any farm, orchard, and dairy products in this State], either for himself or others, and give a draft, cheek, or order in payment of such products, and the payment of the draft, check, or order is refused by the drawee, by
It therefore follows that where one is being tried under an accusation based upon this statute, it is a good defense for him to show that the sole reason for refusal of payment of a cheek given for payment of the products mentioned was that after the giving of the cheek and prior to its presentation to the bank for payment the drawer of the check was placed in involuntary bankruptcy, and his funds in the bank, which were sufficient to pay the check, were seized by a receiver appointed to take charge of the bankrupt’s assets, arid that the check would have been paid if the seller of the products had presented it for payment before the seizure of the funds. The law having taken.his money which he had put in the bank to meet this check, he should not be held criminally liable for the subsequent refusal of the bank to pay the check when presented. See, in this connection, Floyd v. Cook, 118 Ga. 526 (45 S. E. 441, 63 L. R. A. 450).
Under the foregoing rulings and the facts of the instant case, the court erred in excluding from evidence a certified copy of the bankruptcy proceedings, showing that the Moore & Oetgen Company (the drawer of the checks in question) was adjudged an involuntary bankrupt, and that a receiver was appointed to take charge of its property. While the record does not disclose that the documentary evidence rejected was in itself sufficient to show that the company had enough funds in the drawee bank, at the time the receiver took charge of them, to pay the checks in question, it was admissible because it tended to corroborate the defendant’s statement to the jury that the company did at that time have sufficient funds in the bank to pay the checks, and that they would have been paid if presented before the appointment of the receiver. On account of the error in excluding this evidence, a new trial becomes necessary.
There is no substantial merit in any of the other grounds of the amendment to the motion for a new trial; and, as ‘there must be another trial of the ease, the general grounds of the' motion are not passed upon.
Judgment reversed.