The opinion of the Court was delivered by
Mr. Justice Fraser.This is an indictment under Section 208, Criminal Code of 1912, which reads as follows:
“Sec. 208. Misdemeanor to Draw a Check When Drawer Has No Bunds on Deposit. Any person who shall hereafter draw and utter any check, draft, or order upon a bank, banking house, person, firm, or corporation with which or whom he has not, at the time, sufficient funds to meet the same, and shall thereby obtain from another money or other thing of a value or induce such person to surrender or postpone any remedy he may have against such drawer, shall be guilty of a misdemeanor, and, upon conviction, shall be punished by fine or imprisonment in the discretion of the Court; the offense to be within the jurisdiction of the Magistrate’s Court if the value of the property obtained be less than twenty dollars and be punished by a fine not exceeding one hundred dollars or imprisonment not exceeding thirty days: Provided, that if such person shall deposit with the drawee of such paper within thirty days thereafter funds sufficient to meet the same with all costs and interest which may have accrued, the prosecution under this Section shall be discontinued.”
In 1923 the Legislature re-enacted this Section (33 St. at Large, p. 120), but required the presence of a fraudulent intent. The Act of 1923 repealed the section, of the Code upon which this indictment was founded, and the demurrer to the indictment should have been sustained.
Sutherland on Statutory Construction, § 142: “A change of the elements of the offense, or in the elements or amount of the penalty will destroy the identity of the offense and effect a repeal to.the extent of the repugnance.”
*19425 Ruling Case Law, p. 930: “Thus where a later statute defines an offense that is described in an earlier statute, the earlier statute is repealed.”
In this case the earlier statute provided punishment without fraud; the later statute made fraud an essential element of the offense. The second statute repeals the first. The demurrer to the indictment should have been sustained, and the order appealed from is reversed.
Messrs. Justices Watts and Marion concur.