Wayne H. Clayton was indicted under LSA-R.S. 14:71, as amended by Act 156 of 1956, for issuing a worthless check in exchange for the sum of $75 cash. He was found guilty by a jury of the "unauthorized use of a movable" as denounced by LSA-R.S. 14:68, and sentenced to pay a fine of $100 and costs, and to serve four months in the parish jail, and in default of payment of fine and costs an additional two months' confinement. Wherefore this appeal.
It appears that, prior to sentence being imposed, the defendant filed a motion in arrest of judgment wherein the constitutionality of Act 156 of 1956 amending LSA-R.S. 14:71 was assailed. The motion was sustained by the lower court from which judgment the State appealed. In proceedings before us bearing No. 43,473 of our docket 233 La. 972, 99 So.2d 312, the judgment appealed from was reversed, the statute held constitutional, and the case was remanded to the trial court for further proceedings, specifically the imposition of sentence.
Upon being called into court for sentence, the defendant filed a motion in arrest of judgment on the ground that the verdict of "unauthorized use of a movable" is not responsive to the charge of "issuing worthless checks".
The contention of the defendant was rejected, to which ruling he reserved a
The interrelated provisions of our law dealing with responsive verdicts are to be found in LSA-R.S. 14:5, 15:386, 15:405, 15:406. These statutes declare:
As a result of the provisions of the foregoing statutes, the sole question posed is whether the elements of the crime of issuing worthless checks (the greater offense) necessarily contains all of the elements of the crime of unauthorized use of a movable (the lesser offense).
From a study of the crime of issuing worthless checks, supra, its provisions peremptorily emphasizes its necessary elements to be: (1) with the intent to defraud; (2) what is received in exchange for the check, draft, or order for the payment of money has some value; and (3) with knowledge at the time of issuance that the offender has
On the other hand, the necessary elements of the crime of unauthorized use of movables is: (1) the intentional taking or use of a movable belonging to another; (2) without the owner's consent, or by means of fraudulent conduct, practices or representations; and (3) but without any intention to deprive the owner of the movable permanently.
Thus it is readily seen that the elements of the lesser offense are not necessarily contained in the definition of the greater offense. A comparison unquestionably demonstrates that the greater offense does not include all the legal and factual elements of the lesser offense. One of the necessary and essential elements of the crime of issuing worthless checks is that the act be committed "with intent to defraud", while on the other hand one of the necessary and essential elements of the crime of "unauthorized use of movables" is that the act be committed without any intention to deprive the other (owner) of the movable permanently".
As was said in State v. Alphonse, 154 La. 950, 98 So. 430, 431. (LSA-R.S. 14:71):
The word "defraud" is defined by Webster's New International Dictionary, 2d Ed., Unabridged: "To deprive of some right, interest, or property, by deceit; to cheat; as to defraud a servant, a creditor, the state; * * *" (Italics ours). The synonymous word "cheat" is also defined as: "To deprive of something valuable by use of deceit; to practice fraud upon; to defraud; swindle; as, to cheat a man out of his savings * * *." (Italics ours.)
The Encyclopedia Dictionary defines the term as meaning: "To deprive of a right, by withholding from another, * * * that which he has a right to claim or obtain." (Italics ours.)
"To defraud is to cheat, to deprive another of a right, to withhold wrongfully what is due to him, or to prevent him wrongfully from obtaining what he may justly claim. * * *" 9 Am. & Eng.Ency. Law (2d Ed.) 180.
There is an unanimity of opinion in all jurisdictions as to the meaning of this term in that in its ordinary and accepted signification it is the deprivation or withholding from another that which justly belongs to or is due him, to deprive of something dishonestly, and to rob. 18 C.J. 468; 26A C.J.S. Defraud p. 148; Berry v. State, 153 Ga. 169, 111 S.E. 669, 35 A.L.R. 370.
The history of the statute, supra, denouncing the unauthorized use of movables finds its source in the early statutes making it a crime to use the animal of another, milking the cow of another, using the automobile of another, and other kindred movables. In the Reporter's Comment we observe that: "This section is intended to cover mainly the unauthorized use of automobiles, * * *. However, the unauthorized use of any movable, including such objects as vehicles generally, farm implements, livestock, et cetera, is included within the section."
Thus it is manifest from the definitions of the two statutes, supra, aside from their history and source, that in the issuing of worthless checks the gravamen of the charge is the "intent to defraud" which as defined unmistakably means to dishonestly deprive the owner of any property, right or interest; to withhold, to embezzle or to rob, whether by overt act or deceit. It is an act of unjustly depriving the owner of what belongs to or is due him.
On the other hand, it is equally clear that in the crime of "unauthorized use of movables", one of its essential ingredients is that it is committed "without
In State v. Jacques, 45 La.Ann. 1451, 14 So. 213, 214, we find a terse statement applicable in cases of this nature. After observing one of the general rules of criminal pleading in regard to duplicity in substantive charges, with its exceptions, this Court said:
This view was again stated by this Court in State v. Desselles, 150 La. 494, 90 So. 773, 778, thusly:
See also Marr's Criminal Jurisprudence, 2d Ed., Vol. II, Sec. 696, page 1078.
In State v. Roberts, 213 La. 559, 35 So.2d 216, 218, after quoting approvingly from the Jacques, Desselles and Antoine cases, supra, we said:
Also see State v. Poe, 214 La. 606, 38 So.2d 359.
An excellent discussion of the proper application of our codal rules is set out in a Utah case, State v. Woolman, 84 Utah. 23, 33 P.2d 640, 645, 93 A.L.R. 723. In that case it is said:
For the foregoing reasons, the conviction and sentence appealed from are reversed, the motion in arrest of judgment is maintained, and the proceedings against appellant are dismissed.