238 N.W. 879 | S.D. | 1931
This action is before this court upon an appeal from a conviction under the provisions of chapter 121, Laws of 1923. The defendant was informed against for issuing a present dated, as distinguished from a post dated, check in the sum of $391.43. The state proved upon the trial that the defendant, in payment of an old account, gave the check in question, that at the time he gave this check he had no money in the bank upon which it was drawn, and that he knew he had no money in the bank. The defendant offered to prove that, at the time the check was given, it was agreed by the payee named in the check, who is still the holder of the check, that the check would not be presented for payment until such time as the payee was notified the defendant had money in the bank, and in the meantime the payee was to collect a certain gas tax refund the defendant had due him from the state of South Dakota and apply this amount, which was something over $100, upon the check. The trial court sustained an objection to this offer of proof, and submitted the case to the jury under instructions which, in effect, stated that, if the defendant made and issued the check without sufficient funds on deposit to pay the check, and if the defendant knew there were not sufficient funds on the deposit to pay the check, then the defendant was guilty. The jury under these instructions properly returned a verdict of guilty, and the court thereupon sentenced the defendant to the state penitentiary at hard labor for a period of one year.
Other than the correctness of the ruling of the trial court in sustaining the objection to the offered testimony, the error assigned directly raises the constitutionality of chapter 121, Laws of 1923, when applied to a present dated, as distinguished from a post dated, check. We rest this decision upon the unconstitutionality of that law. This court has recently, in the case of State v. Nelson,
[1] The above reasoning applies with the same force to a present dated check as it does to a post dated check. We therefore are of the opinion that the law must be held unconstitutional wherein a present dated check is concerned, in that it is violative of the provisions of section 15 of article 6 of the Constitution which prohibits imprisonment for debt founded on contract, and we refer to the further reasoning in the opinion in the case of which the above quotation is but a part.
[2] Upon the oral argument, the Attorney General contended that, in the opinion in the case of State v. Nelson, supra, it was stated that sections 1 and 2 of the acts standing alone constitute a complete law, and therefore, even though the remaining portions of the law are unconstitutional, sections 1 and 2 should not be held invalid. With this contention we are unable to agree. The general rule has recently been announced by this court in the case of Haines v. Rapid City et al.,
The judgment appealed from is reversed, and the defendant ordered released from custody.
POLLEY, P.J., and CAMPBELL, ROBERTS, and WARREN, JJ., concur.