dissenting: The defendant was convicted of giving a worthless check for $72.60 in violation of law. He authorized Leland Mason-as his agent to buy fish and oysters; he gave Mason a check book and requested the bank to honor checks drawn by Mason as his agent; apparently there was no limit to the number or the amount of the checks to be drawn by Mason. The check in question was given by Mason to Gaskill Brothers “under that authority from Baker.” The defendant cannot escape liability by showing that Mason was his agent. S. v. Kittelle, 110 N. C., 560.
Judge Barnhill’s charge to the jury was clear and accurate. ■ ITe instructed them that they could not convict the defendant unless they found that the cheek was delivered to Gaskill Brothers by the agent, Mason, for and on behalf of the defendant, and that at the time it was delivered the defendant did not have funds in the bank to meet it and had not made arrangements with the bank for its payment. He told them that the last two propositions were admitted by the defendant and that they “must further find beyond a reasonable doubt that at the time the cheek was drawn, issued, and delivered the defendant knew he did not have sufficient funds in the bank to pay the check upon presentation.”
The judge in a previous part of the charge had said this: “Now, the defendant admits that when this particular check was delivered to the prosecuting witness by the man named Mason he did not have in the bank of Greenville sufficient funds to pay the check, and that he had not made arrangements with the bank for the payment of it upon presentation.”
This admission, which is a part of the record, was repeated, then, in the charge to the jury.
So the only question is whether there is any evidence that the defendant knew his funds in the bank were insufficient to pay the check. The jury found that he had such knowledge; they would hardly have come to this conclusion in the absence of any evidence in its support. Direct and unequivocal testimony is not required; circumstances may be convincing. About the time the check was returned the defendant had other outstanding checks for the payment of which no provision had been made. A second worthless paper drawn in the same way was then in the hands of Gaskill Brothers. He failed to comply with his promise to Gaskill “to settle the matter up.” These and other circumstances, *582together with the fact that the defendant bad apparently given Mason unlimited authority to draw checks as his agent is, in any view of the case, evidence from which the jury may be justified in their finding that the defendant knew he did not ‘have sufficient funds in the bank. Can he evade liability by clothing his agent with unrestricted power to draw checks in his name and then be heard to say he did not know his funds had been exhausted? If his position is correct, the appointment of an agent may result in a convenient and effective method of abolishing the statute. 1 think Judge Barnhill made no error in submitting the case to the jury.