A Survey of Worthless Check Offenres

• Author: Major James E. Simon
• Pages: 02

I INTRODUCTION

RETURNED rNPAID FOR REASON INDICATED: 1 Insumclenf Funds 7

Endorsement

0lrllrllns

3 Bat Ij Drawn 0 Wrong Bank

r signature 0

Uncollected Funds 7 Other Reason

(Specify)

The bank clerk placing this notice on a check uttered by a service member is probably more concerned with protecting the interests of her emplo>-er, the bank, than with the legal conse-quences which she may set in motion by her act. She would not be concerned with the reason why there are insufficient funds in the maker's account. Far her purposes, it is immaterial whether the shortage in the account was caused by a mathematical error an the part of the maker in maintaining his check stubs, by his mistake as to the bank on which it u~as drawn, or by an irresponsible wife who overdrew her share of a joint account Nor would she be concerned with the fact that he may hare been drunk or in~ane at the time he made and uttered this check.

While these matters may be of no concern to her, they are of vital concern to the commanding officer of the maker specifically, and to the military establishment generally. The commanding officer is concerned because a member of his command has probably committed a criminal offense and he faces the unpleasant

* Thia article was adapted from a thesis presented to The Judge Advocate General's School, US. Army, Charlotterwlie. Virginia. while the author wasB member of the Ninth Career Course. The opinions and eonclu~ione presented herein aye those of the author and do not necersanly represent the w e ~ i of The Judge Advocate General's Schaal or any other governmental agency. [EDITOR'S

NOTE: The reader should carefully note that rhx article was written prior ta the pairage of H.R. 7661 ~n the first seislan of the 81th Congrerr For B discussion af this new legidlation IPub. L. 81-385, 76 Star 811) see the text Bceompan?lnF note 138 bnjra.1

.* JAGC. U. S. Army: Judge Advocate Section, Headquarters, 1st Cavalr) D:riiion (Korea), LL B.. 1948. Boston L'niuer~ity: llember of tho hlassachuretts and New Hampshire Bars.

AGO 11618 29

task of taking disciplinarv action against him and answering the hysterical letters of the defrauded payee who w11 undoubtedly expect the Army to make him whole. The military community as a whole 1s interested because this dereliction reflects unfaror-ably on it and may hinder future attempts of military personnel to cash checks in communities where they are not well known.

But ahat action can a commander take in this situation? If he decides to draft charges against the serviceman, what are the appropriate charges and hoa does he draft them? Vhat eridenee

1s necessary to prove these charges? If the charges are eventually referred to trial, what pioblems will the trial counsel encounter in proving his case, and what happens If the commanding of-ficer has mistakenly omitted part of the specification? Khat action should the lax office, take If, during the cour~e of the trial, there is evidence of intoxication, or mistake of fact. and how should he Instruct the court with respect to these matters?

It is the purpose of this article to examine these and other problems connected with prosecuting worthless check offenses under Articles 121 and 13.1 of the Uniform Code of Military Justice. Particular attention will be detoted to analyzing the criminal intents required under these articles and to the false pretense theory of Article 121 Proposals for new leeislation in this field will also be examined with a view to determining their adequacy to meet the needs of the military ~erricer.

I1 LARCESY BY CHECK

A SOI'RCEAI1 persons nho knawlnglg and des%nedly, by falx pretense or pretenses. shall obtain iron, any person or persons. moms, pooda. W ~ P P or merchandms. wnh intent to cheat OT defraud ens perron or rhall be fined and Imwrironed. OT . .

el>- "hipped OT . tramported . . . for the te,m of seven years . . . .

Thir 1767 statute served as a model for the false pretense statutes in most states and for the offenae of ahtnining Property by false pretenses as prohibited bl- Article 121, Uniform Code of Nilitary Justice This statute w8.2 enacted to fill a gap left in the

'An Act for the More Effectual Punishment of Perjars Who Shall Attain, 01 Attempr to Attain Porrerdon o i Goods 01 Money By False 01 Untrue Pietenlei. 1757, 30 Gel. 2. e 24 b 1

'lo U S C b 921 (19501 The Uniform. Code af Jlilxarp Justice *ai onglnally enacted a3 PLbl:c Lau 608, 81rr Cang, ch. 159. E 1, 61 Stat 108, 60 CS.C L( 651.736 IC has elso been referied to a! "The Act of 6 Mag 1950." It i a s recodified 88 10 U S C L $ 601-910 111 1956 (Publlc Law 1028. 84th Cong, ch 1011. 70.4 Stat 36-781 The r.2 C elfanon w111 be hereinafter omlrted h i t may be determined b) ilddmp 800 !n the number a i the L-nlfarm cace oren.

30 AGO llliB

WORTHLESS CHECK OFFEXSES

law of larceny, as it was generally held that larceny uas esrentially a crime against possession involving a trespass to property, with no transfer of title resulting. As obtaining property by false pretense did not involve a treSpasS but did result in a transfer of title, a new statute to prohibit this conduct was required.s

This mime haa long been recognized, in one form or another, in military justice. It was violative of the American Article of War 62, 1874 (the general article) to "obtain money on false pretenses from other soldiers." Subsequent Manuals for Courts-Martial had model specifications for this offenw aa violations of the general articles then in

Congress, in enacting the UCILIJ, consolidated into one offense (larceny) the crimes formerly known 88 larceny, embezzlement, and obtaining property by false pretenses.' Larceny by check is the false pretense which will be the subject of this section.

E. PLEADISG PROBLEMS 1. Variances Between Pleading and ProofOnly one model specification is used to allege a larceny, whether the larceny inrolves a taking, obtaining or withholding.T In alleging a larceny by check, i.e., obtaining money or goods by uttering a worthless check, it is sufficient if the specification alleges that the accused ". . . did steal . , . ," and it is unnecessary to allege the false pretenses used to effect the larceny.8 How-ever, several problems have ariden where variations develop between pleading and proof and where the mme act i~ alleged as violations of Articles 121, 133 and 134, L'CXJ.

Variations between allegations and proof as to the property obtained a3 a result of a worthless check are rather numerous. Cheeks are frequently negotiated to commercial establishments for cash, or merchandise, or both, and when a check is subsepuently dishonored the payee's records mill not usually establish

' 2 2 Am. Jur. False Prrtsnsca 5 3 (1939); Perkin?, Criminal Law 249, 272

'Winthrop, \lllitary La-, and Precedents 732 (2d ed. reprint 1920) * C.S.

Dep't of Army, hlanvsl far Caurti-Martial, 1928, App 4, No. 120;U.S. Dep't of Army. Xanual far Caurta-Yarnal, 1919. Ipp, 4, No 118 (hereinafter referred TO as ''MClI 1928" or ''~1Cbl 1948").lHsanngs on H R . 2198 Before /I &bcommit

(19671.

'United States V. Bessie)., 3 USCUA 111, 11 C\IR 111 (1953).

A00 XlBSB 31

whether cash or merchandise was the consideration far the check. A common example of this le where a check is used to purchase groceries in a supermarket. In alleging a riolatian of Article 121, U C W however, the property stolen must be specifically ident8ed.O An Army board of review found a fatal variance where the specification alleged a larceny of money via a worthless check, and the eiidence merely established that merchandise or money was recei\ed theref0r.l' Air Force boards of review, however, are in conflict on this matter. l

The law is quite settled, however, that in a larceny case an accused is entitled to know specifically what property he is charged with stealing, and it is idle to cantend that an accused is not prejudiced in his defense when he is called on to defend against a charge af stealing keys and id convicted of a larceny of a car." However, there may be immaterial variations which will permit findings of a lesser amount. For example, where an accused is charged with a larceny of 550.00 cash, and the evidence show a larceny of E30.00 in cash and S20.00 in merchandiae, a substituted finding of a larceny of $30.00 in cash would not be a fatal Yariance, 8s this 1s included within the offense charged, but a substituted finding of a larceny of $20.00 merchandise mould not be

If it IS uncertain what the accused receiwd in return for the check, it is better to allege the matter BS a violation af Article 134, UChIJ, where, as will be noted in the folloiving sections, variations of this type are immaterial.

proper.'a

2. ' M U l t l ~ l m f l /

Another pleading problem is that of multiplicity, where the same act or transaction is alleged as violations of Articles 121, 133 and 134, UCMJ. The Xanual admonishes against an undue multiplication of charges and states that one transaction, or what is rubstantially one transaction, shall not be made the baeis

'United States V. Grimes, 8 CSCilA 568, 25 CllR 'i2 11958)-'Chi 354119, Huffmsn, 6 CDlR 244 11952).'In ACY 5350, Lettien. 5 CYR 729 (1932i. the apeeificatian alleged a larceny of S5ti ~n caah but the eridence srtablirhed that about 539 in cashand the balance :n liquor had been rtolen The Board held this variance immaterial In ACMS 3677, Parker, 5 CYR 804 i19121. the accused WBJ charged with larceny of S16 in caih. but the evidence established a larceny of cash and merchandiae in tas the maximini pumsh-irt

iahved to redeem several smaller checks pre~iauily uttered by the accused and ahich were beinp held by the payee.

'"United States v Nedeau. 7 ESCIA 718. 23 C E R 182 (19671."Para 74b(2) snd (3). M C I , 195132 *DO lldiB

WORTHLESS CHECK OFFENSES

for an unreasonable multiplication of chargee. However, when sufficient doubt as to the facts or law exists,. this may warrant one transaction being the basia far two or more charpea."

Army...