Saffold v. State
75 S.E. 338
Ga. Ct. App.
1912
Check Treatment

Rehearing

ON MOTION FOR REHEARING.

Russell, J.

Uрon the original investigation of the record and the briefs in this case, the point raised by the demurrer was maturely considered, and it was the opinion of the court that the demurrer was properly overruled; but, by inadvertence, the point was not dealt with in the decision.

In our opinion, the rulings in Townsend v. State, 92 Ga. 732 (19 S. E. 55), and Brazil v. State, 117 Ga. 32 (43 S. E. 260), have no application whatever to the question presented by the case аt bar. In the Brazil case the indictment (which contained two counts, one charging forgery and the other that the accused did “falsely and fraudulently páss, pay and tender in payment” the рaper alleged to have been forged by him) was held to be sufficient, ‍‌​‌‌​‌​‌​​‌‌‌​​‌​​‌​​‌​​‌‌​‌​​‌‌‌‌​​‌‌​​‌​​​​​​​‍and the statement that “our penal laws fail to provide a punishment for uttering a bank check drawn in a fictitious name” is clearly obiter dictum, because that specific point was not before the court for decision. In the Townsend ease Judge Simmons was dealing with an indictment based upоn the second division of section 4453 of the Code of 1882 (section 247 of the Penal Code of 1910), and the controlling question before the Supreme Court was whether a check upon a bank is a bill of exchange, within the *333meaning of that section; and the judgment was reversed solely because the court was of the opinion that a cheek is not a bill of exсhange, within the purview of our criminal 'statutes. The indictment in the Townsend case charged the defendant with making a bill of exchange in a fictitious name, and set out a cheek upon the Merchants National Bank of Borne. In concluding the opinion (and showing that evidently the case was decided upon that point alone) the court held that, “the paper in question here being an ordinary bank check, it follows that the conviction ‍‌​‌‌​‌​‌​​‌‌‌​​‌​​‌​​‌​​‌‌​‌​​‌‌‌‌​​‌‌​​‌​​​​​​​‍under section 4453 was improper, and the court below erred in overruling the motion for a new trial.” It is cleаrly to be seen that the trial court in the case at bar properly held that the indictment was brought under section 349 of the Penal Code of 1910; and, therefore, the question presеnted to us, instead of being, as in the Townsend, case, whether a check is a bill of exchange, is whether a check can properly be held to be a “writing” under that section.

We arе of the opinion that, although criminal statutes are to be strictly construed, the broad generic term “writing” can aptly include the more specific term “check,” and, therefore, that the court did not err in overruling the demurrer. It was properly held in the Townsend case, supra, that in prosecutions under section 4453 of the Code of 1883 (section 347 of the Penal Code of 1910), a distinction exists between the terms “bill of exchange” and “check,” for the reasons pointed out in the opinion. The accused in the ease now before us, howevеr, was not indicted under section 347 of the Penal Code, but is charged under the provisions and in the terms of section 349 ypth obtaining money by means of a false writing made in a fictitious name. It'is true the paper set out is what is ordinarily called a “check;” it may be said to be a check, but it is none the less a “writing,” ‍‌​‌‌​‌​‌​​‌‌‌​​‌​​‌​​‌​​‌‌​‌​​‌‌‌‌​​‌‌​​‌​​​​​​​‍and section 349 is intended to cover any case of obtaining goods or money on a false writing. Section 347 is directed against the man who draws or makes the papers dealt with, or indorses or accepts them; section 349 denouncеs the obtaining of goods or money, though the accused may not have written the writing which is used to defraud another. Section 347 refers only to eases in which a fictitious name is used; section 349 punishes one who employs a false or forged writing issued in the name of a real person, as well as him who employs a false writing made in a fictitious name. An essential element in *334the offense penalized by section 249 is the obtaining of goods or money, or both; one may violate section 247 without obtaining anything of value. Motion for rehearing denied.





Lead Opinion

Russell, J.

1. The evidence authorized thе finding of the jury, and the trial judge did not abuse his discretion in overruling the motion for a new trial.

2. There is no merit in the assignment of error based upon the excerpt from the charge of the court; nor is the exception that the court erred by intimating an opinion as to what had been proved sustained by” the record. It is permissible for ‍‌​‌‌​‌​‌​​‌‌‌​​‌​​‌​​‌​​‌‌​‌​​‌‌‌‌​​‌‌​​‌​​​​​​​‍the trial judge to state his recollection of what has been testified, when, in doing this, he does not intimate any opinion as to the weight which the jury should attach to the testimony, or that any statements which have been madе are true.

3. There was no error in the ruling upon the admissibility of the testimony to which objection was made. As to this point the decision is controlled by the ruling of the Supreme Court in Farmer v. State, 100 Ga. 41 (28 S. E. 26). An intent to dеfraud is not presumed by law, but is a matter of fact, to be determined by a jury. “A single act or representation, in many cases, would not be decisive, especially where the accused has sustained a previous good character. But when it is shown that he made similar representations, about the same time, to other persons, and by means of such reрresentations obtained goods, all of which were false, the presumption is greatly strengthened that he intended to defraud.” Trogdon v. Commonwealth, 31 Grattan (72 Va.), 862.

4. The solicitor-general is not permitted to refer to the fact that the defendant has not made a statement, but he may properly comment upon ‍‌​‌‌​‌​‌​​‌‌‌​​‌​​‌​​‌​​‌‌​‌​​‌‌‌‌​​‌‌​​‌​​​​​​​‍the fact that the accused has failed to adduce testimony in rebuttal of evidence introduced by the State, tending to show his guilt.

Judgment affirmed.

In the motion'for a new trial it is alleged that the court erred in charging the jury as follows: “The court instructs you, in the same connectiоn, that if you believe, from the testimony, that, for the purpose of obtaining that amount of money from the West End Bank, he had in his possession such a check, that it was fictitious and fraudulent in thе manner alleged in the indictment, and that in the course of commercial transactions .or business relations he passed that check into the bank and obtained credit therеon, and then issued a check upon the bank, and in that manner procured from it the fund for which he had obtained credit, and if you believe beyond a reasonable doubt that that wаs done, and that the defendant did that, and that he adopted that plan for the purpose of getting the money by fraud, and he did get it by fraud, in the manner alleged in the indictment, it would be your duty to convict.” In argument at the trial, counsel for the accused contended that Miss Tunison, “who they said paid the money,” failed to identify the accused as being the man to whom she paid it, and that the check was not in evidence. The solicitor-general contended that the check had been admitted in evidence. “The court stated, in reply to cоunsel who addressed the court, that, as he recollected the evidence, one of the witnesses had testified that the signature on the check was the signature of the defеndant, who stated that his name was "Vandiver, and the young lady testified that she paid the money to a man who represented himself to be "Vandiver; and that if the check had not been admitted in evidence, the court wanted it understood that it was admitted.” This statement of the judge is complained of, as being a declaration or intimation to the jury as to what had been proved. Over the objection that it did not relate to the transaction charged in the indictment, and was irrelevant and prejudicial to the accused, the court admitted еvidence that in June, 1911, the accused made various deposits in the West End Bank, including checks payable to J. H. Vandiver and indorsed in that name, and drew various checks in that name on the same bank; this evidence being offered for the purpose of showing a scheme to deceive the bank, by which the accused obtained money on the check described in the indictment. And over a like objection, the court allowed the State to introduce, as bearing on the question of fraudulent intent,' evidence that at different times near the date alleged in tbe indictment, the accused obtained money from different sources on worthless checks drawn on different banks and signed by him in various names. The admission of the evidence in question is complained of in the motion for a new trial. The solicitor-general, in his argument to the jury, stated that the defendant by his own acts admitted his guilt; that he did not produce a witness to disprove it. Counsel for the accused objected to this statement and moved that the court declare a mistrial, upon the ground that the solicitor-general had “argued the failure of the defendant to make a statement.” The solicitor-general stated that he did not intend to argue that the defendant did not make a statement, but intended to refer to the defendant’s failure to introduce evidence. The court declined to declare a mistrial, and told the solicitor-general that he could “explain that to the jury and go on with the argument;” and this was done. It is alleged that the court erred in not declaring a mistrial. Mozley & Moss, for plaintiff in error. Hugh M. Dorsey, solicitor-general, E. A. Stephens, contra.