Opinion
4 Div. 328.
April 15, 1937.
Appeal from Circuit Court, Houston County; D.C. Halstead, Judge.
Malcolm F. Kinsaul was convicted of making or uttering a check with knowledge that he had no funds or insufficient funds in drawee bank to pay it, and he appeals.
Affirmed.
The affidavit upon which the prosecution was begun is as follows:
"Before me, S. P. Poyner, judge of the county court of said county, personally appeared Ed Raines, who being by me first duly sworn deposes and says that he has probable cause for believing, and does believe that within twelve months before making this affidavit Malcolm F. Kinsaul, with intent to defraud did make or utter a check upon the First National Bank of Dothan, knowing at the time that he had no funds or insufficient funds in such bank with which to pay the same, in said county against the peace and dignity of the state of Alabama."
The following is the information filed in the circuit court:
"The state of Alabama, by its solicitor, complains of Malcolm F. Kinsaul that, within twelve months before the commencement of this prosecution he did with intent to defraud make or utter a check upon the First National Bank of Dothan, knowing at the time that he had no funds or insufficient funds in such bank with which to pay the same."
The demurrer to both the affidavit and information takes these objections: (a) It fails to apprise the defendant with sufficient particularity of the offense with which he is charged; (b) it is not alleged therein the amount of said check alleged to have been issued; (c) it is not alleged to whom said check was given; (d) it is not alleged that any person was defrauded by issuance of said check; (e) it does not appear that any money, merchandise, property, or thing of value was obtained, or the title of the same parted with by reason of said check being issued or uttered.
H. K. Martin, of Dothan, for appellant.
A. A. Carmichael, Atty. Gen., and John J. Haynes, Asst. Atty. Gen., for the State.
The appeal is on the record proper, without bill of exceptions.
The only question apparent is as to the correctness of the trial court's action in overruling appellant's demurrers to the "information" filed against him — the case having been brought up to the circuit court for a trial de novo, from a judgment of conviction in the county court. Code 1928, §§ 3800, 3801, 3809, 3813, 3837, and 3843.
It is enough that we say that the prosecution is for the offense denounced by the law of our state as codified into section 4158 of the "1936 Cumulative Supplement to the Alabama Code of 1928, by The Michie Company," giving check or draft when funds insufficient to cover. And that, so far as we can see, said "information" (and the affidavit by which the prosecution was begun) properly charged the offense so denounced.
There was hence no error in overruling the demurrers interposed.
The judgment is affirmed.
Affirmed.