Summary
In Payne v. State, from Hamilton County, decided at Nashville on December 22, 1928, Payne was convicted of obtaining $5 by the use of a worthless check.
Summary of this case from Diehl v. KnightOpinion
Opinion filed December 24, 1928.
1. CRIMINAL LAW. Gross fraud and cheating. Worthless check. Notice of non-payment.
Upon the non-payment of check, the statute, as amended provides that the offender shall be guilty unless payment (shall be made) of such check, draft or order after giving three days written notice mailed to the drawer's last-known address. (Post, p. 210.)
Citing: Shannon's Code, sec. 6742a8; Acts 1925, ch. 105; State v. Crockett, 137 Tenn. 683.
2. CRIMINAL LAW. Gross fraud and cheating. Worthless check. Notice of non-payment.
When a specified mode of giving notice is prescribed that method is exclusive. (Post, p. 211.)
Citing: 20 R.C.L., 343.
3. STATUTES. Penal and criminal. Construction.
Penal statutes, and criminal ones within this class, are to be strictly construed. (Post, p. 211.)
Citing: Elmore v. State, 135 Tenn. 347; Kitts v. Kitts, 136 Tenn. 319; 25 R.C.L., 1081-1084; 2 Lewis Sutherland Statutory Construction (2 Ed.), sec. 520.
4. STATUTES. Providing for written notice of injury are generally mandatory.
As notice to a municipality; also notice to employer in Workmen's Compensation Act, by sec. 15 of the Act. (Post, p. 211.)
Citing: As to the first, City of Knoxville v. Fielding, 153 Tenn. 586; White v. Nashville, 134 Tenn. 695. As to the latter, Beech v. Keicher, 154 Tenn. 329; Black Diamond Collieries v. Deal, 144 Tenn. 466.
FROM HAMILTON.Appeal from the Criminal Court of Hamilton County. — HON. CHA S.W. LUSK, Judge.
W.J. COUNTS, for plaintiff in error.
W.F. BARRY, JR., assistant attorney-general, for the State.
Plaintiff in error was convicted for the offense of obtaining $5 by means of a worthless check. A fine of $50 and a workhouse sentence of ninety days was imposed by the trial court.
The statute, as amended, provides that the offender shall be guilty unless "payment (shall be made) of such check, draft or order after giving three days' written notice mailed to the drawer's last known address." Shannon's Code, sec. 6742a8; Chapter 105, Acts of 1925; State v. Crockett, 137 Tenn. 683.
In construing the statute here involved this court, in State v. Crockett, supra, said:
"The constituents of the offense, as set forth in the statute, are the issuance of the check, draft, or order with fraudulent intent, the obtainment of money or credit thereon, the failure of the drawee to pay the check after demand made, and the subsequent failure of the person issuing the check to pay it after the seven days' written notice shall have been mailed to him."
The State failed to prove the giving of the written notice, but the trial court was of the opinion that the plaintiff in error had received actual notice, and held that to be sufficient. This was error.
"Where a specified mode of giving notice is prescribed by statute that method is exclusive." 20 R.C.L., 343.
Penal statutes are to be strictly construed. Elmore v. State, 135 Tenn. 347; Kitts v. Kitts, 136 Tenn. 319; 25 R.C.L., 1081.
Criminal statutes fall within this class. 25 R.C.L., 1084; 2 Lewis Sutherland Statutory Construction (2 Ed.), section 520.
This court has repeatedly held that actual notice to a municipality of an accident is insufficient where the statute provides for written notice. City of Knoxville v. Fielding, 153 Tenn. 586; White v. Nashville, 134 Tenn. 695.
Also, in construing the Workmen's Compensation Act, this court has held that actual notice by the employer does not excuse the giving of the written notice provided by section 15 of the act. Beech v. Keicher, 154 Tenn. 329; Black Diamond Collieries v. Deal, 144 Tenn. 466.
It would violate all rules of construction for the court to convict a party of a crime upon notice different from that expressly provided in the statute. If the mode of giving notice in a civil statute is exclusive, as was held by this court in the cases referred to, how much more necessary it is to apply this rule in construing criminal statutes, where the liberty of the citizen is involved.
For the error indicated above, the case will be reversed and remanded for a new trial.