53 Wash. 464 | Wash. | 1909
Lead Opinion
On the 1st day of August, 1908, the defendant, Pilling, drew a check on the Daly Bank & Trust Company of Butte, Montana, in favor of James R. Thompson for the sum of $18,000, and delivered the same to the payee therein named. Thompson endorsed and delivered the check to the Scandinavian-American Bank of Tacoma, Washington, and the latter institution cashed the check • and delivered the proceeds to Pilling or Thompson, Pilling ultimately receiving the money. The check was not paid on presentation, and an information was thereupon filed against the defendant under § 1 of the act of March &, 1905, Laws of 1905, p. 78, which reads as follows:
“Any person who shall with intent to defraud make, or draw, or utter, or deliver to another person any check, or draft, on a bank or other depository for the payment of money, knowing at the time of such drawing, or delivery, that he has not sufficient funds in, or credit with said bank or depository, to meet said check, in full upon its presentation, shall be guilty of a felony,” etc.
Trial was had before a jury, and from a judgment pronounced upon a verdict of guilty, this appeal is prosecuted.
The denial of a challenge for cause, interposed to one of the jurors by the appellant, is assigned as error, but a new trial must be awarded on other grounds, and inasmuch as this question will not arise on a retrial, in the same form at least, we deem it unnecessary to discuss or consider it.
It is next contended that the court erred in denying a motion to dismiss, interposed at the close of the state’s case, on the following grounds: (1) Because the state failed to prove that the appellant had not sufficient funds or credit in the bank to meet the check on its presentation; (2) because there was a variance between the allegations and the proofs in this; whereas the information charged that the appellant re
(1) The admissions or confessions of the appellant, coupled with the evidence of the officer of the bank upon which the check was drawn, was sufficient evidence to carry the case to the jury on the question of the existence of funds or credit to meet the check on- its presentation.
■ (2) The essential elements of the crime defined by the statute are three: first, the drawing of a check on a bank or other depository for the payment of money; second, knowledge at the time of drawing the check that the drawer has not sufficient funds in, or credit with, the bank or depository to meet the check in full upon its presentation; and third, an intent to defraud. Under this statute the technical ownership of the money paid out by the bank over its counter was not material. The material question was the intent to defraud. The proof showed that the prosecuting witness was compelled to, and did, repay the money to the bank by reason of his endorsement, and that he was the party in fact defrauded. But aside from this, Bal. Code, § 7132 (P. C. § 1665), provides that,
“In any case where the intent to defraud is necessary to constitute the offense of forgery or any other offense that may be prosecuted, it shall be sufficient to allege in the indictment or information an intent to defraud without naming therein the particular person or body corporate intended to be defrauded ; and on the trial of such indictment it shall be deemed sufficient, and shall not be deemed a variance if there appear to be an intent to defraud the United States, or any state, territory, county, city, town, or village, or any body corporate, or any public officer in his official capacity, or any copartnership, or any member thereof; or any particular person; and persons of skill shall be-.coinpetent-witnesses to prove a forgery.”
(3) The contention that the statute authorizes imprisonment for debt, in violation of § 17 of article 1 of the state constitution, is not well founded. The statute punishes the party for his fraud and not for his failure to redeem his check. In re Milecke, 52 Wash. 312, 100 Pac. 743.
After the jury had retired to consider of their verdict, they returned into court and asked the following question:
“We wish to know a little more about the intent to defraud. If a man issues a check on a bank, knowing at the time of the issuance of the check that there is not sufficient funds or credit in the bank to meet the check, would that be considered intent to defraud?”
To this inquiry the court replied:
“I think if a man issues a check upon a bank where he has no funds to meet the check, and no credit in the bank to meet the check, and obtains anything of value upon the check, the law would presume that an intent to defraud.”
This instruction was excepted to and is assigned as error. The exception must be sustained. As already stated, there are three constituent elements in the statutory definition of the crime charged. The question propounded to the court would indicate that the jury had already resolved two of these against the appellant, and the court, by the charge complained of, determined the third and more important one against the appellant as a matter of law. There are two classes of legal presumptions, conclusive and rebuttable. Against the former no kind of testimony however strong will prevail, while presumptions of the second class are equally conclusive until overcome by proof. If this instruction did not withdraw the question of intent from the consideration of the jury entirely, it as least cast the burden of proof upon
For this error the judgment is reversed, with directions to grant a new trial.
Fullerton, Gose, Chadwick, Morris, and Parker, JJ., concur.
Dissenting Opinion
(dissenting) — I cannot agree that the answer of the court to the question of the jury was reversible error. The jury simply desired to know how they were to find the intention of defendant, and for that purpose asked the court: “If a man issues a check on the bank, knowing at the time of the issue of the check that there was not suf.ficient funds or credit in the bank to meet the check, would that be considered intent to defraud?” If the court had simply answered this question in the affirmative, the answer would clearly have been correct, because the question covers all the
In my opinion, the judgment should be affirmed.
Crow and Dunbar, JJ., concur with Mount, J.