(dissenting).
The prosecuting attorney, April 30, 1954, filed an information charging appellant with having drawn and delivered a check, well knowing at the time that “he did not have funds or credit for the payment of any part of the check”; such information was grounded upon I.C. § 18-3106, the so-called bad check statute which forbids the drawing of a check without sufficient funds in or ■credit with the bank to pay the check upon presentation.
The prosecuting attorney dismissed that information June 25, 1954; on the same date he filed' an information charging appellant with ■ fraudulently obtaining property, grounded upon I.C. § 18-3101 which reads in- part as follows:
' “Every person who knowingly and designedly by any false or fraudulent representation or pretense, defrauds any other person of * * * property, * * * and thereby fraudulently gets possession of * * * property * * * is punishable in the,same manner and to the same extent as for larceny of * * * the value of the property so obtained * * *.” (Emphasis supplied).
The crux of the offense forbidden by I.C. § 18-3101 is that the person fraudulently gets, possession of property; the .offense cannot be committed by a fraudulent representation alone, nor unless the person^ thereby gets possession of the property. ■ . ;
The trial judge properly instructed the jury (Instruction No. X) in accordance with the theory of the information and the statute, I.C. § 18-3101.
The trial court then instructed the jury (Instruction No. XIII) in accordance with the bad check statute, i. e., I.C. § 18-3106; as follows:
“You are instructed that if you find that the drawer did issue and deliver'a postdated check in the regular course Of business without having sufficient funds in or credit with the hank for: the payment thereof in full upon presentation and if you further find that .the drawer failed to inform or call the attention to ■ the payee that the check was postdated or failed to make arrangements to. hold; said(check, you may find that the.-drawer-, had the intent to defraud the payee.” (Emphasis supplied.) .. • --,
I.C. § 18-3106, as amended 1949 -S'ess-Laws, ch. Ill, reads in part as follows:-- .-■ ;
“Any person, who * * * wilfully) with intent to defraud -shall make or draw or utter or deliver •' *’■ * ■ ■*. • any check, * * * for the payment; of; money upon any bank *■ * *-.'knowing at the time * * * that the maker or drawer has no funds or sufficient funds in or credit with such bank *, * for the payment of such-check, ‡ ,* in full upon its presentation,. *■ ■ *. ,* shall upon' conviction . be., punisheil *534* * *. As against the maker or drawer- thereof, the making, drawing, Uttering or delivering of. such check * * *: shall be prima facie evidence of intent to defraud and of knowledge of no funds or insufficient funds, as the case may be, in or credit with such bank * * * for the payment of such check,, * * * in full upon its presentation. * * * ” (Emphasis supplied.)
The accused, in State v. Campbell, 70 Idaho 408, 219 P.2d 956, 959, was charged with making or uttering a check without sufficient funds or credit in the drawee bank to pay the same. The fact that the accused had drawn the check upon a bank, in which he had no funds on deposit or other credit, was discovered before he had obtained money or other property in exchange for the check. The court ruled:
“The crime condemned in Section 18-3106, I.C., as amended, is complete when the maker, with intent to defraud, makes, utters or delivers the check, knowing that he has no funds or credit with the bank to pay the same if it were presented at that time.”
The further ruling of this court, particularly applicable to the discussion here, reads as follows :
"Neither isfit necessary that the check be accepted by the person to whom it is tendered and such person part with something of value. The statute in question is not concerned with the . offense of obtaining money or property-by false pretense. The making' or '■ uttering of the check is sufficient although the payee may reject the check and there be no completed delivery. The completion of the crime under the statute does not depend upon the success of the enterprise.” (Emphasis supplied.) ' '
Instruction No. XIII did not réquire the jury to consider any evidence bearing upon the question, whether or not the check was appellant’s promise to pay in the future. The jury in order to find appellant guilty under I.C. § 18-3101, the bad check statute, did not have to consider and could have completely ignored, the testimony of the Coppards, wherein, taken together, they testified many times, variously and indefinitely as to the time that the transaction took place relating to the automobile, mainly, to their recollection, in their opinion, as they thought, and otherwise maintained, on- or about March 4, 1954; whereas, the documentary and certain other evidence definitely and indisputably fixed the time of the occurrence of the transaction earlier than March 4th. Such documentary evidence consists of: .
Bill of sale and warranty under oath relating to the automobile, shown executed by R. J. Coppard (or by Mr. Coppard through Mrs. Coppard) and sworn to before a notary public March 2, 1954.
The application for certificate of title to the automobile, in blank, dated March 2, 1954.
*535Bank check drawn by appellant to the Coppard Garage, dated March 4, 1954.
Bank deposit slip dated March 3, 1954, showing the deposit of appellant’s check in a bank at Soda Springs, Idaho.
The bank’s ledger sheet of Coppards’ account, showing the bank deposit made March 3, 1954.
Other positive evidence consists of:
The testimony of R. J. Coppard, that the bill of sale to the automobile (shown notarized March 2, 1954) was not notarized prior to the time appellant arrived in Soda Springs.
The testimony of Mrs. Coppard who handled all of the garage’s financial transactions, that when appellant drew and delivered his check, “I looked it over and got the bill of sale and gave it to him”; also, that she deposited the check in the bank after appellant had left.
Such documentary and other evidence shows conclusively that the transaction, which included appellant’s drawing the check, was consummated March 2, 1954.
Such instruction also would forbid the jury from considering whether or not Mrs. Coppard, an owner, the financial manager of, Coppard’s Garage, had knowledge of the fact that the check was postdated, for the record shows that appellant drew his postdated check of March 4, 1954, in Mrs. Coppard’s presence; further, that appellant thereupon delivered the check to Mrs. Coppard and that she looked it over, to which she twice testified; whereupon she delivered to appellant the bill of sale to the automobile. If Mrs. Coppard knew that the check was postdated, under the circumstances shown, then no duty rested upon appellant to advise her of something she already knew.
If appellant’s postdated check was his promise to pay in the future, then the transaction of his getting possession of the automobile could not have been tainted with fraud on his part.
The judgment of the trial court should be reversed, and the cause remanded for a new trial.
PORTER, J., concurs in this dissent.