83 W. Va. 71 | W. Va. | 1918
Rollin R. Price was convicted in the circuit court of Randolph countjr of procuring a certain lot of cattle by giving a check therefor without having sufficient funds to meet the same, in violation of § 34 of ch. 145 of the Code, and to a judgment sentencing him to be confined in the penitentiary he prosecutes this writ of error.
For many years the defendant was extensively engaged in the business of buying and selling cattle through a number of adjoining counties of the state. In the year 1915 he arranged to purchase from Mrs. Pettit, the prosecuting wit
The first error assigned is to the action of the court in overruling the demurrer to the indictment. The indictment is in the form prescribed by section 34 of ch. 145 of the Code, but it is contended that this form is not sufficient inasmuch as it does not require an averment that after the dishonor of the check demand was made for its payment, and this demand not met in twenty days. Ordinarily where the legislature prescibes a form of pleading it will be sufficient to follow the requirements thereof. In many jurisdictions the whole matter of pleading and practice is regulated by forms prescribed by the* legislature. We eannot say that there is any essential element of the offense omitted in the indictment in this case. It is true,-a party dravring a check when he has not sufficient funds in the bank with which to meet it may excuse himself from, prosecution by paying the check within twenty days after demand, but the essential elements of the offense created by this section are the making of the false representation and the obtaining of the goods of another thereby. Of course, as in most -criminal cases, the element of intent is necessary. The legislature in passing this statute had in view the fact that a man might mistakenly give a check without funds in the bank to meet it, but if such were the case that he would rectify the error as soon as it was brought to his attention. The fact that the offense may be excused by showing that the defendant made good the check within the twenty days simply goes to the question of his criminal intent, it being declared by the legislature that if the check is made good within that time there is no fraudulent intent, and can be no conviction. We think, therefore, the indictment in the form prescribed by the statute is sufficient on demurrer.
The defendant next assigns as error the refusal of the trial court to permit him to prove that almost immediately after his attention was called to the fact that the, cheek was
The action of the court in giving the state’s instruction No. 1 .is also assigned as error, and this may be considered in connection with the assignment of error based upon the court’s refusal to; give defendant’s instruction No. 7. The defendant’s contention is that he deposited the forty-five hundred dollar draft in the bank with an agreement that it was to be used in the payment of the check upon which tMs indictment was based, among others, given by him for the purchase of cattle," and that the bank by allowing this draft, after it had been-accepted, to be reduced by the amount of one thousand dollars, and paying other drafts drawn on him without his knowledge, improperly diverted the funds wMch
It is also complained that the court erred in giving state’s .instruction No. 2. This instruction told the jury that a reasonable doubt is not a vague and uncertain doubt, and that what the jury believed from the evidence as men they should believe as jurors. This sort of attempt to define such simple and well understood language as reasonable doubt has been condemned by this court in a number of cases, notably that of State v. Taylor, 57 W. Va., 228; State v. Alderson, 74 W. Va., 732: State v. Snider, 81 W. Va., 522; State v. Worley, 82 W. Va., 350, 96 S. E., 56; State v. Cook, 81 W. Va., 686, 95 S. E., 792; State v. McCausland, 82, W. Va., 525,
Instruction No. 4 given, by the state is criticised. It tells the jury that if they are morally certain of the defendant’s guilt they should so find. The moral certainty which this instruction tells the jury is sufficient evidence of guilt may be based upon things which the jurors know aside from the evidence that has been introduced in the case; it may be based upon prejudice, or upon conduct of the accused in connection with other matters. Manifestly it would be improper to convict a man of a crime because the jury may be morally certain of his guilt when that moral certainty arises from its knowledge of his general course of dealing. It is not inconceivable, and frequently it is the ease that men have a reputation in the community undeserved which lead a considerable number of their neighbors to believe them guilty whenever they are suspected of any offense, and this belief in the minds of many is so strong as to amount to moral certainty of guilt as soon as a charge of crime is made. This instruction does not limit the jury to the consideration of the evidence introduced in the case, but allows them to arrive at this state of moral certainty from anything. This is as broad as their range of kn owl edge or information, and
The defendant also contends that it was error for the court to refuse his instruction No. 5. This instruction tells the jury that it is the duty of a person receiving a check drawn on a bank in another place to forward it direct to the place where the bank is located for payment, and that the plaintiff failed to present her check within a reasonable time, for which reason Price is relieved of all liability. This instruction is based upon § 186 of ch. 98a of the Code, being the negotiable instrument law. That section provides that a check must be presented within a reasonable time after it is issued or the drawer will be discharged from liability thereon to the extent of the loss caused by the delay. We cannot see what application that has to this case. The loss referx-ed to in that section means loss to Price, and in this case Pi’ice lost nothing by the failure to present this check at the time it was presented rather than at an earlier time. If the bank had become insolvent before the presentment of the cheek, and this resulted in a loss to Price of tho amount he had on deposit thei’e to meet the check, that section would have application, but he cannot say that because the payee of the check has lost money on account of its being dishonored that Price is discharged from paying his debt.
What we have said disposes of all of the questions presented and results in a reversal of the judgment complained of.
Reversed and remanded.