203 N.W.2d 177 | S.D. | 1973
Defendant appeals from his conviction on two counts of obtaining money and property under false pretenses, SDCL 22-41-4, following a court trial. On June 1, 1970, defendant opened a checking account in the Chamberlain, South Dakota, branch of the Northwestern National Bank (bank). The account was closed on December 28, 1970. Although the record is not clear by whom and for what reason the account was closed, there is evidence in the record that some insufficient fund checks had been returned prior to the time the account was closed.
Sometime after December 28, 1970, the account was reopened under the same account number and on the basis of the signature card which defendant signed at the time the account was originally opened on June 1, 1970.
On April 22, 1971, defendant went to the bank and drew a check in the amount of $1.18, which was the balance remaining in the account. In accordance with the bank’s accounting procedure, the account was then closed by the bank because the account had been brought down to a zero balance.
On May 1, 1971, defendant stopped at Walt’s Standard, a gasoline station near Chamberlain, and purchased some gasoline for his automobile. He paid for the gasoline with a $15 check drawn on the bank and signed in the presence of the attendant and received the balance of the check in cash. Approximately 15 to 30 minutes later defendant came back to the station and told the attendant that he wanted some money to go look for his daughter who had run off and gone west with a man. Defendant gave the attendant another check in the amount of $20 drawn on the bank and received $20. The two checks were returned to Walt’s Standard unpaid accompanied by a slip giving as the reason for nonpayment the notation “Account Closed.”
One of the conditions printed on the reverse side of the signature card which defendant signed at the time he opened the account states that:
“The account may be closed by the Bank at any time by mailing a notice to the Depositor with a check for the balance, and the Bank shall not be liable for refusing to pay any check presented after said account is so closed.”
In State v. Christian the court stated that the misdemeanor check statute, SDCL 22-41-1, applies where the accused has established an account in the bank prior to making, uttering or delivering a check and that the felony check statute, SDCL 22-41-4, applies where the accused has not established an account with the bank.
“In other words, a ‘no account’ check constitutes a ‘false token’ under the false pretense statute whereas an ‘insufficient fund’ check does not.” 177 N.W.2d 271, 273.
We conclude that State v. Christian is not applicable to the fact situation presented by the instant case. It was the defendant himself, not the bank through its unilateral action as contended by defendant, who created the situation that made him subject to felony charges. Whatever defendant’s contractual relationship may have been vis-a-vis the bank, we are satisfied that as between himself and Walt’s Standard defendant knew that he had extinguished his account by writing a check for the balance of the account on April 22, 1971. This knowledge on defendant’s part, coupled with the information conveyed to him by the store owner on April 30, 1971, that the bank personnel could find no account under his name or number, negates any argument that defendant wrote the two checks in question on an existing account. The checks thus constituted false tokens within the meaning of SDCL 22-41-5.
The conviction is affirmed.