(64 Utah, 587, 232 Pac. 543.) Erickson, District Judge, delivered the opinion of the court: In this action defendant was convicted in the district court of Weber county upon a charge of felony and sentenced to an indeterminate term in the state prison of the state of Utah from one to ten years, from which judgment of conviction and imprisonment he appeals to this court. The information charges the defendant as follows: "Nelson G. Tinnin, having heretofore been duly committed by D. R. Roberts, a committing magistrate of this county, to this court, to answer this charge, is accused by the district attorney of this judicial district, by this information, of the crime of felony, committed as follows, to wit: "The said defendant, on February 18, 1924, at the county of Weber, state of Utah, did willfully, unlawfully, fraudulently, and feloniously make and pass a certain fictitious instrument in writing, purporting to be a sight draft for the payment of $320 in money, drawn on the Ogden State Bank, a banking corporation with its principal place of business in Ogden, Utah, signed by R. A. Kennedy and payable to the order of Glen Bros. Roberts Piano Company, a corporation with its principal place of business at Ogden, Utah, with the intent of him the said defendant to defraud the said Glen Bros. Roberts Piano Company, there being in existence at said time no such person as R. A. Kennedy, which the defendant then and there well knew, and when the said defendant then and there well knew that said purported sight draft was fictitious, the same being in words and figures following, to wit: "At sight pay to the order of Glen Bros. Roberts Piano Co. three hundred twenty dollars ($320.00). For value received. Write name of your bank here: To Ogden State Bank, City. Sign here: R. A. Kennedy.' "Contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Utah." The main and principal contention of the defendant relied upon for a reversal of this case is that the evidence in the case does not prove the offense described in § 8276 of the Utah Compiled Laws 1917, of a violation of which the defendant was convicted, and which section reads as follows: "Every person who makes, passes, utters, or publishes, with intention to defraud any other person, or who, with the like intention, attempts to pass, utter, or publish, or who has in his possession, with like intent to utter, pass, or publish, any fictitious bill, note, or check, purporting to be the bill, note, check, or other instrument in writing for the payment of money or property of some bank, corporation, co-partnership, or individual when in fact there is no such bank, corporation, co-partnership, or individual in existence, knowing the bill, note, check, or instrument in writing to be fictitious, is punishable by imprisonment in the state prison for not less than one nor more than ten years." Appellant contends that if any violation of law was proved at all, it could not amount to more than the offense designated in § 8347 or the said Utah Compiled Laws 1917, which reads as follows: "Any person who, with intent to defraud, shall make or draw or utter or deliver any check, draft, or order for the payment of money upon any bank or other depositary, knowing at the time of such making, drawing, uttering, or delivery that the maker or drawer has not sufficient funds in or credit with such bank or other depositary for the payment of such check, draft, or order in full upon its presentation, shall be guilty of a misdemeanor. The making, drawing, uttering or delivering of such check, draft, or order as aforesaid shall be prima facie evidence of intent to defraud. The word 'credit' as used herein shall be construed to mean an arrangement or understanding with the bank or depositary for the payment of such check, draft or order." The evidence in this case shows that on the 18th day of February, 1924, the defendant was introduced to one Holland, an employee of Glen Bros. Roberts Piano Company of Ogden, Utah, whereupon the defendant advised Holland that he was desirous of purchasing a phonograph, after which a phonograph was purchased, valued at $310, for which he gave in payment therefor his cash for $320, receiving in cash $10 out of which he expended several dollars for some sheet music. The check was signed "R. A. Kennedy" in the presence of Holland and next day presented to the Ogden State Bank for payment, which was refused because of "R. A. Kennedy" not having an account at that bank. The evidence further shows that on the same day the defendant issued at least two other checks to Ogden merchants in payment for purchases made and signed the same name, which checks were also presented to the bank and payment refused for the same reason as given above. Shortly after the arrest of the defendant he admitted that Kennedy was not his true name; that it was a fictitious one; that his true name was Tinnin. Also at the arraignment the record shows that defendant stated that he was being prosecuted under his true name, viz., Tinnin. The evidence also shows that he stated that he used the name of "Kennedy" because it was "handy." We agree with defendant's statement that our § 8276 was recently adopted from the California Penal Code, § 476, enacted by California in 1872. Ours is exactly the same with the exception of the penalty, which is from one to fourteen years in California, and from one to ten years in Utah. The defendant undoubtedly takes the position, as claimed by him, that no conviction under that section of law has ever been had in the state of California wherein a person signed a fictitious or assumed name to an instrument and claimed the same to be his own name. We think there is no question but that it has been held by some authorities that an instrument supposed to be fictitious must be a false instrument, and if it is understood to be the instrument of the one who signs it, his use of a fictitious name will not make it a forgery; the credit having been given to him without regard to the name. See § 764, vol. 2, McClain on Criminal Law. Contracts— name-effect. There is no question in law, either, as to a contract entered into by a per- use of fictitious son under an assumed or fictitious name being valid. The law law looks to the identity of the individual, and when this is established the act is binding upon him and others, irrespective of the name he has assumed. But here we have an action where a person, as appears from the evidence, fraudulently and with intent to cheat and defraud the said Glen Bros. Roberts Piano Company, signed a fictitious name to the check and passed it to the said company, and, as stated by himself, he used that name because it was "handy." We agree with counsel for defendant that a person may rightfully assume a name which is not his own, as is frequently done in good faith; but in this case it appears that the defendant was a stranger at Ogden and in that vicinity, and that he evidently thought and believed and intended that by adopting and using the same fictitious name that it would enable him to prevent identification of himself later on when the fraud had been discovered, and which he undoubtedly knew would soon be discovered. Webster defines the word "fictitious" to mean feigned; imaginary; not real; counterfeit; false; not genuine. In People v. Eppinger, 105 Cal. 36, 38 Pac. 538, which is a California case cited by appellant, the defendant was prosecuted under the Construction and effect of criminal statutes directed specifically against use of worthless, false, or bogus checks or drafts. [False Pretenses. § 8.] This annotation is supplementary to that upon the same subject in 35 A.L.R. 375. Purpose of statutes. (Supplementing annotation in 35 A.L.R. 376.) It is stated in Ex parte Myers (1925) 119 Kan. 270, 237 Pac. 1026, that, since the purpose of statutes of the character now under consideration is to stop the mischievous practice of giving worthless checks, it would seem that the offense where a check is mailed to the payee in another county, for the purchase price of goods sold there, was committed where the mischief occurred, that is, where the payee was injured by the acts of a sender of a check, which was the address of the payee. Fraudulent intent. (Supplementing annotation in 35 A.L.R. 380.) The gist of the offense under a bad check statute is the intent to defraud, and such intent must, therefore, be alleged in the indictment. McBride v. State (1925) Miss. 104 So. 454. 43 A.L.R.-4. -- Fraudulent intent is the gist of the offense of obtaining money by means of a bogus check, and where there is competent evidence supporting a finding of such intent, the verdict of the jury will not be disturbed because there is some testimony tending to indicate there was no such fraudulent intent. Beach v. State (1924) Okla. Crim. Rep., 230 Pac. 758. Insufficiency of funds or credit. (Supplementing annotation in 35 A.L.R. 381.) Where the statute makes it unlawful to give a check with knowledge that the giver has not sufficient funds on deposit, or credit with the bank, to pay the check, the crime created thereby consists of two essential elements: First, knowledge of insufficient funds; and, second, knowledge of insufficient credit; and therefore an indictment charging the passing of a check with knowledge that there are not sufficient funds in the bank to meet it, without alleging lack of sufficient credit, does not state an offense under the statute. State v. Edwards (1925) — N. C. —, 130 S. E. 10; State And such defect is not cured by a subsequent clause of the indictment, alleging that the drawer of the check unlawfully and wilfully failed to provide funds for the payment of check upon its ten days after notice of its nonpayment. State v. Edwards (N. C.) supra. the presentation within An indictment charging the utterance and delivery of a check, with knowledge of the insufficiency of the funds or credit to meet it, without alleging that the accused drew the check, or knew that the drawer had insufficient funds or credit, does not state an offense under a statute making it unlawful to make, draw, utter, or deliver a check, knowing that the maker or drawer has not funds or credit for its Parker v. State (1925) 20 Ala. App. 470, 103 So. 76. sufficient payment. Upon a prosecution under a statute making it a misdemeanor to give a check, with knowledge of the insufficiency of the funds or credit for the payment of such check in full upon its presentation, an information following the language of the statute, except with the omission of the words "in full upon its presentation," is not open to the objection that it does not state an offense under the statute, since payment of a check involves its full and not partial payment when presented, and the words "in full upon its presentation" are superfluous, for they neither add to nor detract from the material allegations in the information. People v. Westerdahl (1925) 316 Ill. 86, 146 N. E. 737. Disclosure of insufficiency of funds. (Supplementing annotation in 35 A.L.R. 383.) The giving of a worthless check in payment for materials and services, with the request that it be not presented until a later day by reason of the insufficiency of the funds in the bank at the time, the receiver of the check agreeing to defer presentation until the time mentioned, does not constitute an offense within the statute against swindling by getting prop erty by giving a check without funds and without reason to believe that it will be paid when presented in the ordinary course of business. Lloyd v. State (1924) 98 Tex. Crim. Rep. 504, 266 S. W. 785. Postdated checks. (Supplementing annotation in 35 A.L.R. 384.) The fact that a worthless check, in consideration of which the drawer receives an automobile, is postdated, does not take the case out of a statute making it a misdemeanor to draw a check and thereby obtain any personal property, knowing at the time that the drawer has not sufficient funds or credit to pay the check. People v. Westerdahl (Ill.) supra. It was contended that as the check was postdated, the automobile was obtained on the day of the transaction, not in reliance upon the check, but solely upon the personal credit of the drawer; but the court said that, by drawing and tendering the check, the purpose was presumed to be to induce the belief that it would be paid upon presentation, and that only upon the assumption that the check was good did the drawer obtain delivery of the automobile, and that the automobile was given in reliance upon the check, and not upon the personal credit of the drawer. But one is not guilty of the crime of uttering a fraudulent check, in violation of the statute, where he gave a postdated check in payment for horses, with the statement that he had written a letter to the bank and by the time the check got there it would be all right, the payee being aware that the check was postdated, and that the maker did not, on the day of the transaction, have sufficient money in the bank to meet it. State v. Patterson (1926) Mont. 243 Pac. 355. Necessity of damage. (Supplementing annotation in 35 A.L.R. 386.) The rule in civil actions for fraud, that the plaintiff cannot recover unless he has actually been injured or has suffered detriment in some manner, does not apply in a criminal prosecution for the making or passing Payment of pre-existing debt. The fact that a worthless check is used in the payment of a pre-existing debt, and that the payee thereof is not thereby disadvantaged or placed in any worse position than formerly existed, does not prevent the prosecution of the giver of the worthless check. People v. Williams (Cal.) supra. The court said that, if a consideration was necessary, the delay occasioned by the issuance of the spurious paper would furnish the same, as its issuance served the purpose of postponing any action upon the debt, constituting at least some detriment, but that the court did not think that actual detriment of the payee determined in any particular the criminal intent of the drawer of the worthless check. In State v. Edwards (1925) - N. C. -, 130 S. E. 10, upon an unsuccessful appeal by the state from a dismissal of the indictment because of its failure to allege a want of credit to meet the check, the court said that the original worthless check act provided that every person who, with intent to defraud another, shall obtain anything of value by means of a worthless check, is guilty of a misdemeanor, but that the Act of 1925 contained no requirement that the check be given for value presently received, and that the language was sufficiently comprehensive to include a check or draft drawn to cover a past indebtedness; and it was suggested in the state's brief that a proper construction required the interpolation in the 1925 Act of the words "for value," or their equivalent, as used in the former act; but the court said that that question need not be considered by them, for the reason that neither these words nor their equivalent were found in the indictment. Existence and character of parties to instrument. (Supplementing annotation in 35 A.L.R. 390.) Securing merchandise by the use of a worthless check signed by a fictitious name is within a statute making it a felony for one to make, with intent to defraud, a fictitious check purporting to be an instrument in writing for the payment of money of some individual, when, in fact, there is no such individual in existence. STATE v. TINNIN (reported herewith) ante, 46. And a conviction under a similar statute was sustained in People v. Roche (1925) Cal. App. - 241 Pac. 279, upon proof that the defendant indorsed and delivered to a Chinese restaurant keeper, and received from him money on, a check, representing it to be good, which drawn payable to another by one whom the bank officials testified had no account, and whom police officials testified had no existence, which facts were not denied by the defendant, who claimed that the check had been given to him by a friend. was Restitution; necessity and sufficiency of notice of nonpayment. (Supplementing annotation in 35 A.L.R. 391.) The subsequent payment by the offender of a small part of the worthless check does not operate as a bar to his criminal prosecution, under a provision of a worthless check act for the abatement of a prosecution of an offender upon his payment of the amount of the worthless check. Ex parte Myers (1925) 119 Kan. 270, 237 Pac. 1026. The crime of obtaining money by means of a bogus check is completed at the time the check is uttered and passed, and the fact that the utterer subsequently gives the defrauded party security for the debt owing him. by reason of the transaction does not affect the question of his guilt. Beach v. State (1924) Okla. Crim. Rep. 230 Pac. 758. |