State v. . Dowless

9 S.E.2d 18, 217 N.C. 589, 1940 N.C. LEXIS 301

• Court: Supreme Court of North Carolina
• Decided: May 22, 1940
• Status: Published

Opinion

Devin, J.

The defendant assigns as error the ruling of the court below denying his motion for judgment of nonsuit.

The warrant, upon which the defendant was tried and convicted, charged that defendant W. B. Dowless did issue and deliver a worthless check, knowing that he did not have sufficient funds or credit with the bank with which to pay same, whereas the proof shows a-check issued by a corporation of which defendant Dowless was executive head, together with oral evidence that the corporation did not have sufficient funds or credit with the bank to pay same.

While the terms of the statute (Public Laws 1927, ch. 62) are broad enough to cover the utterance and delivery of the check of a corporation by an officer thereof with knowledge of the falsity of the check and the insufficiency of the funds or credit of the maker, here the charge is .that W. B. Dowless, individually, .issued the check with knowledge that he (Dowless) did not have sufficient funds or credit with the bank to pay the check. The proof does not conform to the charge contained in the warrant. There is a variance between allegation and proof. S. v. Franklin, 204 N. C., 157, 167 S. E., 569; S. v. Corpening, 191 N. C., 751, 133 S. E., 14; S. v. Harbert, 185 N. C., 760, 118 S. E., 6.

We conclude that, on this record, the defendant’s motion for judgment of nonsuit should have been allowed.

Reversed.