39 Del. 320 | New York Court of General Session of the Peace | 1938
delivering the opinion of the Court:
The statute was designed to protect the public against a species of cheat. The evil of drawing and issuing checks on banks in which the drawer has no funds, or insufficient funds, has long been recognized, and, from time to time, statutes in varying forms have been enacted. In this, as, perhaps, in other states, it has been a matter of some difficulty to frame an act sufficiently adequate for the protection of the public against those fraudulently disposed, and, at the same time, to exclude from its operation, those innocent of an intent to defraud.
The first statute, Chapter 265, Vol. 21, pt. 2, Del. Laws, made it a misdemeanor for one knowingly to issue a bad or worthless check for any valuable consideration, with the proviso that the act should not apply to overdrawing a bona fide account. By Chapter 282, Vol. 27, Del. Laws, the inhibition was directed against the issuance, knowingly and fraudulently, of a check on an overdrawn account. By Chapter 242, Vol. 28, Del. Laws, it was made a misdemeanor to issue knowingly a check on an overdrawn account, or on a bank where the drawer had no account. These Acts, doubtless, were regarded as inadequate. By Chapter 237, Vol. 34, Del. Laws, the existing law was enacted.
The word “funds”, abstractly, is of broad significance, but, in general acceptation and signification, it means money, and it is used in this sense in the Act. Galena Ins. Co. v. Kupfer, 28 Ill. 332, 81 Am. Dec. 284; Hatch v. First Nat. Bank of Dexter, 94 Me. 248, 47 A. 908, 80 Am. St. Rep. 401. The word “credit” is specifically defined to be an arrangement or understanding with the bank for the payment of the check. The two words, “funds” and “credit”, are not to be regarded as synonymous or as alternates.
The indictment alleges only that the defendant has insufficient funds in the drawee bank for the payment in full of the check. It ignores the possibility of an arrangement or understanding with the bank for payment of the check in full upon its presentation.
In an indictment for an offense created by statute, the general rule is that the charge must be so laid as to bring the accused precisely within the description of the offense as defined in the statute, alleging distinctly all the essential requisites that constitute it; and nothing can be taken by intendment. 31 C. J. 703; 1 Wharton, Crim. Pr., § 269; State v. Donovan, 5 Boyce (28 Del.) 40, 90 A. 220; State v. Adair, 4 W. W. Harr. (34 Del.) 585, 156 A. 358.
The defendant has not been brought within the material words of the statute. The indictment is fatally defective, and must be quashed. State v. Edwards, 190 N. C. 322, 130 S. E. 10; People v. Frey, 165 Cal. 140, 131 P. 127.
The second paragraph of the section was not intended to be descriptive of the offense denounced by the statute. It provides a rule of evidence. It is not, therefore, necessary to allege that the defendant failed to pay to the drawee the amount due on the check and all costs and pro
The indictment is quashed.