Opinion
February 14, 1949.
1. False pretenses — bad check law — property must be then and there delivered in exchange for and on faith of check.
The rule at common law that one who obtained goods by means of a worthless check is not guilty of cheating is changed by Sec. 2153, Code 1942, as amended by Chap. 403, Laws 1948, commonly known as the bad check law, but in order that the statute shall apply it must be shown that the property was then and there delivered to the accused in exchange for his check and on the faith that the check was presently good.
2. False pretenses — bad check statute — does not cover transaction in which property had been completely delivered at a time distinctly before the giving of the check.
Although the sales contract between the parties was for a cash transaction, nevertheless, if the seller has voluntarily delivered the property to an agent of the purchaser without demand of payment and the agent has departed with the property so as to place it completely beyond the control of the seller, the real relation between the parties has then become that of debtor and creditor and the fact that the purchaser appears thirty minutes later and gives a worthless check in the amount of the purchase price does not render him guilty of a violation of the bad check law, — in legal effect the check was not given in exchange for the property but in the discharge of a pre-existing indebtedness. Sec. 2153, Code 1942, Amended Chap. 403, Laws 1948.
3. Statutes — penal statute not to be extended by construction.
The bad check statute is not to be extended by construction so as to include past deliveries of property. See Sec. 2153, Code 1942, amended Chap. 403, Laws 1948.
Headnotes as approved by Montgomery, J.
APPEAL from the circuit court of Jasper County; HOMER CURRIE, J.
J.M. Travis, and J.A. McFarland, Sr., for appellant.
The record in this case fully shows from the testimony and evidence that J.I. Fowler sold to Bryant Broadus, the appellant, the pressing shop on May 28, 1947; that on May 29, 1947, J.I. Fowler personally delivered to the agent of Bryant Broadus the pressing shop and it was carried away by the agent; that Bryant Broadus was not present at the time of the delivery but afterwards showed up about thirty minutes later and delivery was made by J.I. Fowler of his own free will and accord and the property was gone, which closed the trade; that the payment of Bryant Broadus about thirty minutes later would be a payment of the account, which was previously made, delivery of the property passed title, and consequently Bryant Broadus would not be guilty of any crime in the issuance and the delivery of the check after the property had been delivered. Section 30 of the State constitution, "There shall be no imprisonment for debt".
The facts in this case appear to have been passed on by the court.
In the case of Odum v. Tally, 160 Miss. 797, 134 So. 163, the court held: "Institution of criminal proceeding under bad check law, if merely for the purpose of collection of a debt would render prosecution malicious".
This case further held that the delivery of the property and the check, each must be then and there done.
In the case of Grenada Coca Cola Co. v. Davis, 168 Miss. 826, 151 So. 743, this court held: "Institution of criminal proceeding, under bad check law, would render prosecution malicious where check was issued for property already delivered, not withstanding such transactions were completed at previous hours of the day on which check was issued".
The appellant therefore contends that he should have been discharged by the trial court below, and prays that his case be reversed and he discharged in the matter.
Geo. H. Ethridge, Assistant Attorney General, for appellee.
(The Attorney General did not respond to appellant's argument on the point that delivery of the property had been completed before the delivery of the check.)
Bryant Broadus was convicted in the court of C.C. Chatham, Justice of the Peace of District No. 2, Jasper County, on a charge of issuing a bad check to one J.I. Fowler, in violation of Section 2153, Code of 1942. Broadus appealed to the Circuit Court where he was again convicted, and he appeals from that judgment and sentence.
The proof shows that, on May 28, 1948, Boardus purchased from Fowler certain pressing shop equipment at an agreed price of $250. It was understood between them that the sale was to be a cash transaction. On the following day, May 29, 1948, an agent of Broadus called for the machinery and Fowler delivered it to the agent, who loaded it on a truck and departed, with Fowler's knowledge and consent, and without paying the purchase price. After the truck had departed, carrying the machinery away, Broadus appeared and delivered to Fowler his check for $250. The interval of time between the delivery of the machinery by Fowler to the agent of Broadus, completed by the departure of the truck and machinery for another county, and the time of the delivery of the check by Broadus to Fowler was thirty minutes or less, but Fowler, himself, admitted on the witness stand that at the time he received the check from Broadus the machinery had been loaded on the truck and the truck had already departed from Rose Hill, Mississippi, where the sale and delivery were made. The check was drawn on the Pascagoula-Moss Point Bank of Moss Point. Fowler deposited the check in the Citizens National Bank of Meridian on or about May 30, 1948, and in due course the check was returned duly protested and marked "insufficient funds."
(Hn 1) At common law, one who obtained goods by means of a check on a bank in which he had no credit could not be prosecuted for cheating, because there was, in such case, no false public token. 22 Am. Jur. p. 474, Sec. 76. In this State we have a statute, Section 2153, Code of 1942, amended by Chapter 403, Laws 1948, directed specifically against the use of worthless checks. For Broadus to be guilty of a violation of the statute, it would be necessary for the proof to show that Fowler then and there delivered the pressing machinery to him in exchange for Broadus' check, and on the faith that the check was presently good. Odom v. Tally, 160 Miss. 797, 134 So. 163. In Grenada Coca Cola Co. et al. v. Davis, 168 Miss. 826, 151 So. 743, this Court held that the so-called bad check law does not cover the obtaining of goods where the goods had already been delivered, had passed completely out of the possession of the seller and away from his hands and premises, but there must be an exchange for the check at the time of delivery. (Hn 2) In the case at bar, the pressing machinery had been delivered to the agent of Broadus and the agent had completely removed them from the possession and premises of Fowler and had departed from Roses Hill for Escatawpa, and had been gone for some thirty minutes before Broadus came up and delivered the check to Fowler in payment for same. When Fowler let the machinery leave his possession and control without demanding and receiving the purchase price, he extended credit for same. Broadus did not obtain the machinery with the check, for he had already, before that time, obtained the machinery. He obtained nothing with the check. The check was given in discharge of a pre-existing debt. The bad check law has no application here. (Hn 3) As was said in Grenada Coco Cola Co. v. Davis, supra, the bad check law is severe enough without extending it by construction so as to include past deliveries, to say nothing of the question of the constitutional validity of such a statute if it were so construed.
There is a distinction between the facts in the case at bar and the facts in the case of Moore v. State, Miss., 38 So.2d 693. In the Moore case the $20. was delivered to Moore on the faith of the check and that the check was presently good, while in the case at bar the pressing machinery was delivered and passed completely out of the possession and control of Fowler before he even knew whether the purchase money would subsequently be paid by check or by cash, or in fact paid at all.
The conviction of the defendant in the court below cannot, for the reasons stated, be allowed to stand. The judgment of the lower court will be reversed and the defendant discharged.
Reversed and rendered.