Aрpellant was convicted in Ada County of the crime of issuing a check without funds and was sentenced to.five years imprisonment. He was duly appealed to this court from the order denying his motion in arrest of judgment, from the order denying the motion for new trial and from the judgment.
On October 13, 1949, appellant entered the C. C. Anderson Company store in Boise shortly before three o’clock in the afternoon. He has introduced to Mrs. Thompson, the credit manager of the store, (presumably by a clerk) and “they” handed to Mrs. Thompson a check drawn by appellant for her approval. Appellant wanted the check approved in order to buy merchandise in the men’s department.
The check was a counter check of the Idaho First National Bank of Boise, Idaho. It had been interlined to read, “The Downtown Branch of First National Bank of Portland, Portland, Oregon”; it was in the sum of $37.43; and was signed by appellant, James R. Campbell. The name of the payee was in blank.
Under questioning by Mrs. Thompson, appellant stated that he had arrived in Boise earlier that day, had checked in at a local hotel, was traveling east and was an entertainer. He stated that he wished to buy a coat or jacket before going further east. Mrs. Thompson offered to telephone, as a favor to appellant, to the bank in Portland to verify the check. Appеllant did not want Mrs. Thompson to call the Portland bank, stating that he was in a hurry and was leaving town at three o’clock by bus.
Mrs. Thompson became suspicious and signaled one of her helpers to call the police. Shortly thereafter, James Brandon, Captain of Detectives, arrived at Mrs. Thompson’s office. After some conversation with appellant, Mr. Brandon suggested that they go to the police station and telephone the bank in Portland. At the police station, Mr. Brandon called the bank in Portland and asked that its accounts be checked for the name of appellant and that the bank send a reply to the police department at Boise. Apрellant was in the office of Mr. Brandon at the time of the telephone conversation with the Portland bank.
*412 Shortly after such telephone call was made, appellant stated to Mr. Brandon that he didn’t have an account in the bank in Portland. He had previously told Mr. Brandon at the C. C. Anderson Company store that he did have such an account. About two hours after such telephone call, a telegram was received from the bank in Portland stating, “Records here indicate no account J. R. Campbell.”
The evidence on the part of the state consisted of the testimony of Mrs. Thompson and Mr. Brandon and the exhibits No. 1, the check in question, and No. 2, the telegram from the bank. Thе only evidence offered on behalf of defendant was that of Leo Neher, assistant cashier of the Idaho First National Bank of Boise. He merely testified that the only positive way to find out whether or not a person has an account in a bank is to send his check to the bank, although, as a matter of courtesy, banks sometimes give оut such information.
Appellant makes nineteen specifications of error and contends that the verdict is contrary to the evidence in eight particulars. Without discussing each specification of error separately, we will examine the questions raised by appellant under such specifications.
Appellant was prоsecuted and convicted under the provisions of Section 18-3106, I.C., Section 17-3908, I.C.A., as amended by Chapter 111, Session Laws of 1949.
1
Appellant urges that said section, as amended, is unconstitutional in that it provides no satisfactory standards by which to judge guilt and is uncertain, incomplete and a denial of the right of the individual to have justice administered without sale, denial, delay or prejudice as provided by Article I, Section 18 of the Idaho Constitution. Appellant particularly attacks the use of the phrase “knowing at the time * * * that the maker or drawer has no funds” and the use of the words, “credit,” “agreement” and “understanding.” In
*413
State v. Dingman,
Appellant also urges that the statute, as amended, is unconstitutional because it provides that, as against the maker. the making, drawing, uttering or delivering of the check shall be prima facie evidence of intent to defraud and of knowledge of no funds or credit for the payment 'of such check in full upon presentation; and, particularly, that the statute provides for a presumption based upon another presumption. The statute in question does not base a presumption upon a presumption but provides for two separate presumptions based upon the fact of the making or uttering of the check without funds or credit for its payment. In People v. Fitzgerald,
Appellant contends that the information in this cаse is insufficient in that there is no direct allegation therein that
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appellant did not have funds or credit with the bank upon which the check was drawn for payment of the same in full upon presentation. The statute states the essential elements of the crime. The information charges substantially in the language of the statute and is therefore sufficient. A parallel information under such statute has been heretofore held by this court to be sufficient. State v. Sedam,
Appellant urges that it was necessary for the state to both plead and prove that the check was presented to the bank upon which it was drawn and that the offense is not complete until the check has been presented and payment refused by the bank. In People v. Weir,
The fact that a defendant has no funds or credit with the bank upon which the check is drawn, may be established by any competent legal evidence. It is not required to be established by a refusal of the bank to honor the check. The crime condemned in Section 18-3106, I.C., as amended, is complete when the maker, with intent to defraud, makes, utters or delivers the check, knowing that he has no funds or credit with the bank to pay the same if it were presented at that time. The essential elements of the offense condemned by the statute, are set out in People v. Wellington,
See also, People v. Bullock, supra.
Neither is it necessary that the check be accepted by the person to whom it is tendered and such person part with something of value. The statute in question is not concerned with the offense of obtaining money or property by false pretense. The making or uttering of the check is sufficient although the payee may reject the check and there be no completed delivery. The completion of the crime
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under the statute does not depend uрon the success of the enterprise. People v. Williams,
The check in question was in blank as to the name of the payee. Appellant therefore contends that it was not a completed check and did not fall within the statute. In People v. Gorham,
A check mаde payable in blank is payable to bearer and the blank may be filled in by the holder. Enid Bank & Trust Co. v. Yandell,
Appellant urges that the information does not charge and the proof does not show the commission of an offense under the provisions of Section 18-3106, I.C., as amended, for the reason that the information charges and the proof shows that the bank upon which the check was drawn is located, outside of the State of Idaho. Appellant does not raise the question of venue or of the right of the legislature to make the drawing of a worthless check on a foreign bank a public offense, but takes the position that the term “any bank” in the statute means only a bank located within the State of Idaho.
Appellant relies upon the case of Cousins v. State,
Appellant complains that the court erred in admitting the telephone conversation had by the Chief of Detectives with some person or persons in the bank at Portland. An examination of this testimony disсloses that the Chief of Detectives only testified to what he said over the telephone and testified as to nothing said by the employees of the bank in Portland. The appellant was present when the conversation occurred. The testimony was not hearsay and not objectionable upon that ground.
Appellant alleges еrror in admission of the testimony of the Chief of Detectives that appellant shortly after the telephone conversation, “said that he didn’t have an account in the bank in Portland,” on the ground that the state did not first show that such statement was free and voluntary. Such statement was not a formal confession but was an admission against interest. It was nоt necessary, before such testimony was admissible, for the state to show that the statement was free and voluntary and made without fear, intimidation or promise of benefit. State v. McDermott,
Appellant complains of the admission of the telegram from the bank in evidence on the ground that such telegram was hearsay. We agree that suсh telegram was not admissible in evidence. It was hearsay. However, an examination of the exhibit discloses that it merely corroborates appellant’s admission that he had no account in the bank in Portland. It did not prejudice the rights of appellant and its admission was not such error as to justify reversal.
Appellant rightfully submits that the proof must show both that the appellant had no funds, or insufficient funds, in the bank in order to pay the check upon presentment, and also, that he had no *417 credit, or insufficient credit, with the bank for payment of the check. The trial court, rightfully, so instructed the jury. Appellant argues, however, that the mere admission by appellant that he had no account with the bank is insufficient proof that he had no credit with the bank. It is true that the appellant used the term “no account” and did not say that he had no funds nor credit with the bank. However, the jury was entitled to consider all the circumstances of the case as shown by the evidence in determining whether or not the appellant had any funds in or credit with the bank fоr payment of the check. The chain of circumstances as disclosed by the evidence in this case and appellant’s admission that he had no account in the bank, were sufficient to justify the jury’s finding that appellant had neither funds nor credit for the payment of the check. Such was the conclusion reached by the California Court undеr a comparable chain of circumstances in the case of People v. Hamby, supra.
We have considered the other claims of error urged by appellant and find them without merit. They do not appear to be of sufficient import to require enumeration and discussion.
No reversible error appearing in the recоrd, the judgment of the lower court is affirmed.
Notes
. “Any person who for himself or as the agent or representative of another or as an officer of a corporation, wilfully, with intent to defraud shall make or draw or utter or deliver, or cause to be made, drawn, uttered or delivered, any cheek, draft or order for the payment of money uрon any bank or depositary, or person, or firm, or corporation, knowing at the time of such making, drawing, uttering or delivery that the maker or drawer has no funds or insufficient funds in or credit with such bank or depositary, or person, or firm, or corporation, for the payment of such check, draft or order in full upon its presentation, although no express representation is made with reference thereto, shall upon conviction be punished as follows: (Setting out punishment.) ' As against the maker or drawer thereof, the making, drawing, uttering or delivering of such check, draft or order as aforesaid shall be prima facie evidence of intent to defraud and of knowledge of no funds or insufficient funds, as the case may be, in or credit with such bank, or depositary, or person, or firm, or corporation, for the payment of such check, draft or order in full upon its presentation. The word ‘credit’ as used herein shall be construed to mean an arrangement or understanding with the bank or depositary for the payment of such check, draft or order.”