92 Ga. 732 | Ga. | 1893
The controlling question in this case is, whether a cheek upon a bank is a bill of exchange within the meaning of section 4453 of the code, which declares that “any person who shall draw or make a bill of exchange, due bill, or promissory note, or indorse or accept the same in a fictitious name, shall be guilty of forgery, and, on conviction, be punished by imprisonment and labor in the penitentiary for any time not less than two years nor longer than seven years.” In the second count of the indictment—which is the one under which the plaintiff in error was convicted, the first count having been excluded by the court from the consideration of the jury—it is charged that the plaintiff in error and one Crankfield “did make a certain bill of exchange in a fictitious name in words and figures as follows: ‘Rome, Ga., April 12th, 1893. No.— The Merchants National Bank of Rome pay to Henry Crankfield or bearer $140.93 143 one hundred & 93-100 dollars, Cave Spring, Ga. Albert M. Tumlin ’; the said Albert M. Tumlin not being their real and true name but a' fictitious name, and used for the purpose of wronging and defrauding one Albert N. Tumlin and the Merchants National Bank of Rome, of the sum of one hundred and forty and 93-100 dollars.” The paper
Undoubtedly a check upon a bank is in some respects a bill of exchange; and there are instances where in the construction of penal statutes a check has been held to fall within that designation. (Whart. Crim. Plead. & Prac. §137.) On the other hand, it has been said that “a check is not, either in common parlance, or in the technical language of the books, called a bill of exchange, . . though it may, in some respects, have the same legal operation.” Chief Justice Kent, in People v. Howell, 4 Johns. Rep. 301. And see Bigelow on Bills (ed. 1880), 115, 116; 3 Am. & Eng. Enc. of Law, Art. “ Cheeks,” p. 211; Nisbet, J., in Daniels v. Kyle, 1 Ga. 306. In" arriving at the meaning of the term “ bill of exchange ” as used in the section of the code under which this conviction was had (§4453, supra), other sections which are in pari materia are to be considered in connection with that section; and thus construing them, it will be seen that a distinction is made between bills of exchange and bank checks. The forgery of either is made an offence, the false and fraudulent making etc. of “ any check or draft upon any bank of this State ” being dealt with in section 4445; and the false and fraudulent making etc. of “ any note, bill, draft or check of or on any person, body corporate, company, or mercantile house or firm, or purporting so to be,” being dealt with in another section (§4450); but the case of drawing or making a check m a fictitious name is not provided for, unless the term “ bill of exchange,” as used in section 4453, should be construed to include checks. In sections 4446, 4447, 4448 and 4449, the term “ bills ” and the term “ checks ” are both
The paper in question here being an ordinary bank check, it follows that a conviction under section 4453 was improper, and the court below erred in overruling the motion for a new trial. ' Judgment reversed.