Opinion
(Filed 15 November, 1916.)
1. Criminal Law — Bills and Notes — No Funds — Statutes — Value.
A check for $107, given to the carrier to pay freight charges for the transportation of goods, accepted by it as cash, followed by the delivery of the goods, is for value, within the meaning of Revisal (Pell's), 3434b, making it a misdemeanor for a person to obtain money, etc., or anything else of value by means of a check upon any bank, etc., when it is not indebted to the drawer, etc.
2. Courts — Recorders' Courts — Misdemeanor — Jurisdiction — Statutes.
Pell's Revisal, sec. 3434b, makes it a misdemeanor, and not a felony, for one to draw a check, etc., upon a bank, etc., without funds there, etc., punishable by fine or imprisonment or both, in the discretion of the court; and the offense is cognizable in the recorder's court of the district of Denton, Davidson County. S. v. Hyman, 164 N.C. 411, where the statutory offense was a common-law felony, and by the terms of the statute punishable by imprisonment in the State Prison, cited and distinguished.
3. Indictments — Criminal Law — Offense — Judgments — Motions to Quash.
Where the warrant sufficiently charges a criminal offense created by statute, and informs the defendant of the offense with which he is charged, a motion in arrest of judgment is properly denied.
(926) Action commenced upon warrant in the recorder's court of the district of Denton, DAVIDSON County. The defendant was convicted, and appealed to the Superior Court and tried at February Term, 1916, Cline, J., presiding. The defendant was convicted and sentenced, and appeals to the Supreme Court.
Attorney-General Bickett and Assistant Attorney-General Calvert for the State.
Dallas Zollicoffer, Jerome Jerome for defendant.
WALKER, J., dissents.
The defendant was charged with giving a check for $107.06 on the Bank of Cape Fear, N.C. knowing that he had no funds in said bank. The statute creating the offense reads as follows: "If any person, with intent to cheat and defraud another, shall obtain money, credit, goods, wares, or anything else of value by means of a check, draft, or order of any kind upon any bank, person, firm, or corporation not indebted to drawer, or where he has not provided for the payment or acceptance, and the same be not paid upon presentation, he shall be guilty of a misdemeanor, and upon conviction shall be fined or imprisoned, or both, at the discretion of the court." Pell's Revisal, sec. 3434b.
In apt time the defendant made a motion to nonsuit upon the ground that the evidence did not show that he obtained anything of value within the purport of the statute. The testimony tends to prove that the check was given to pay freight on a car-load of lumber, which freight amounted to $107.06; that the check was taken as cash and the car-load of lumber turned over to him.
We are of opinion this is substantially a thing of value within the meaning of the statute. Defendant moved to dismiss the warrant for the reason that the recorder's court had no jurisdiction, and that the Superior Court could only acquire jurisdiction by bill of indictment. The offense as defined by the statute is a misdemeanor and punishable by fine or imprisonment, or both, at the discretion of the court.
The case is distinguished from that of S. v. Hyman, 164 N.C. 411, which was a charge of perjury. In that case the Court pointed out that though the statute styled the offense a misdemeanor, yet at common law it was a felony, and the statute itself made it punishable by imprisonment in the State Prison, and, therefore, having the actual grade of a felony, though called a misdemeanor, it was held that an offense under the statute could only be prosecuted by an indictment found by a grand jury. The case is within the rulings in the following cases: S. v. Dunlap, 159 N.C. 491; S. v. Shine, 149 N.C. 480; S. v. Jones, 145 N.C. 460; S. v. Lytle, 138 N.C. 738.
The motion in arrest of judgment was properly denied. We (927) think the warrant sufficiently charges the offense created by the statute and also informs the defendant of the offense with which he is charged.
No error.