State v. . Levy

18 S.E.2d 355, 220 N.C. 812, 1942 N.C. LEXIS 552

• Court: Supreme Court of North Carolina
• Decided: January 23, 1942
• Status: Published

Opinion

SchbNok, J.

The pertinent portion of the statute (ch. 62, Public Laws 1927), upon which the warrants were drawn reads:

“An act to prevent the giving of worthless checks.

“Whereas, the common practice of giving cheeks, drafts, and bills of exchange, without first providing funds in or credits with the depository on which the same are drawn, to pay and satisfy the same, tends to create the circulation of worthless paper, overdrafts, bad banking, and check kiting, and a mischief to trade and commerce; and it being the purpose of this act to remedy this evil,

“The General Assembly of North Carolina do enact:

“Section 1. It shall be unlawful for any person, firm or corporation, to draw, make, utter or issue and deliver to another, any check or draft on any bank or depository, for the payment of money or its equivalent, knowing at the time of the making, drawing, uttering, issuing and delivering such check or draft as aforesaid, that the maker or drawer thereof has not sufficient funds on deposit in or credit with such bank or depository with which to pay the same upon presentation.

“Sec. 4. That chapter fourteen of the Public Laws of nineteen hundred and twenty-five be and the same is hereby repealed.”

We are of the opinion, and so hold, that the exceptions urged against the first and second excerpts from the charge- assigned as error cannot be sustained. The charge is substantially in the language of the statute and the burden of establishing the essential elements of the offense beyond a reasonable doubt was properly placed upon the State.

The exception urged against the third excerpt from the charge cannot be held for prejudicial error for the reason that it is favorable to the defendant. If it be conceded that the defendant “entered into an agreement with Mr. Bunch at the time he gave him the checks, either or both of them, that he agreed to hold the checks and not deposit them,” this would not entitle the defendant to a verdict of not guilty if he issued the checks on a bank where he knew he did not have sufficient funds on deposit in or credit with such bank with which to pay the same upon presentation.

The gravamen of the offense against which the statute inveighs as appears from the preamble thereof, is the giving of checks, drafts and bills of exchange, without first providing funds in or credits with the depository to pay the same, thereby causing mischief to trade and commerce by putting in circulation worthless paper — an offense against the public, S. v. Yarboro, 194 N. C., 498, 140 S. E., 216, as distinguished from the former act (ch. 14, Public Laws 1925), now repealed, which was enacted, primarily at least, for the protection of an individual, the payee. If the checks were issued by the defendant, the fact that he had an agreement with the person to whom they were delivered not to deposit them “until the following Saturday,” would not exculpate him from having issued checks on the bank knowing at the time he did not have sufficient funds on deposit in or credit with such bank with which to pay the same upon presentation. “The offense consists, not in presently obtaining something of value by deceit, but in putting in circulation worthless commercial paper which will ultimately result in financial loss.” S. v. Yarboro, supra.

The words “with intent to cheat and defraud the E. & S. Packing Company” used in the warrants were surplusage.

The assignment of error that the sentences imposed were excessive, cruel and unusual cannot be sustained, since they are within the limits prescribed by the statute. S. v. Brackett, 218 N. C., 369, 11 S. E. (2d), 146.

On the record we find

No error.