J. Fraudulent Checks

• Library: The Criminal Law of South Carolina (SCBar) (2014 Ed.)

J. Fraudulent Checks

1. Relationship to Other Offenses

This statutory offense as defined in S.C. Code Ann. §§ 34-11-60-100 (1987 and Supp. 2012) provides some overlap with the offenses of false pretenses and forgery. The property of another could be obtained pursuant to any of these three offenses and a single set of facts may provide the solicitor with the option of proceeding under any of them. As is true of false pretenses, a fraudulent check offense is committed only if property or something of value is obtained. Forgery, it will be recalled, may be committed even though the forged instrument is never uttered. False pretenses, a much broader offense than fraudulent checks, covers a wide variety of stratagems whereby the property of another can be fraudulently obtained.

Forgery and fraudulent checks are confined to the creation or uttering of instruments of legal efficacy. Forgery may be committed with any instrument of legal efficacy, while fraudulent check offenses are limited to "a check, draft or other written order on a bank or depository for the payment of money or its equivalent . . . ." S.C. Code Ann. § 34-11-60(a) (Supp. 2012). The essence of forgery concerns the falseness of the document as created, altered or uttered, while the offense of fraudulent checks focuses on the creation or passing of a check by one who knows he lacks an account or sufficient funds to make the check good. Still it should be borne in mind that one who writes a check using a fictitious name and a non-existent bank account and passes the check for money or other property could be prosecuted for forgery, false pretenses or fraudulent checks. Cf. State v. Wescott, 316 S.C. 473, 450 S.E.2d 598 (Ct. App. 1994), discussed in section I. Forgery, supra. Another distinguishing feature of the fraudulent checks offense is the myriad statutory presumptions which aid the state's case.

The penalties for fraudulent check offenses are somewhat less than for the other two. Effective April 1, 2000, fraudulent checks for $1,000 or less are within the exclusive jurisdiction in magistrate's court for both first and second offenses. Third and subsequent offenses may be tried in either magistrate's court or general sessions. S.C. Code Ann. § 34-11-90 (Supp. 2012). While the cut-off point for magistrate's court for false pretenses is $2,000, S.C. Code Ann. § 16-13-240 (Supp. 2012), third offenses are class E felonies as per S.C. Code Ann. § 16-1-57 (2003) regardless of the amount involved. Given the explicit language of § 34-11-90 stating that subsequent fraudulent check offenses may be tried in either magistrate's court or general sessions court, there appears to be a way to avoid the recidivist provisions of § 16-1-57 (2003). Forgeries are not triable in magistrate's court.

A warrant cannot be obtained more than 180 days after the check was uttered. S.C. Code Ann. § 34-11-60(e) (Supp. 2012). When a fraudulent check is made in one county and uttered in another, either county may exercise jurisdiction over the offense. 1969-70 Ops. Attorney Gen. No. 2867, citing 21 Am.Jur.2d, Criminal Law, § 392 and Shelnut v. State, 247 S.C. 41, 145 S.E.2d 420 (1965).

A charge that the fraudulent check statute violated the Constitution's prohibition on imprisonment for debt, S.C. Const. art 1 § 19 (then § 24), was rejected in State v. Moore, 128 S.C. 192, 194, 122 S.E. 672, 673 (1924) (Cothran, J., concurring). Because the offense of fraudulent checks includes the element of fraud, it is a crime of moral turpitude, and a conviction may be used for impeachment purposes. State v. Harrison, 298 S.C. 333, 380 S.E.2d 818 (1989), superseded by rule on other grounds, State v. Hill, 331 S.C. 94, 501 S.E.2d 122 (1998) (excited utterance exception to hearsay evidence rule). This element of dishonesty also makes it available for impeachment under S.C. Rules of Evidence 609.

2. Scope and Elements

The elements of this offense include: (1) the drawing, making, uttering, issuing or delivering to another of (2) a check, draft or other written order on any bank or depository for the payment of money or its equivalent (3) with the intent to defraud (4) to pay rent, make a payment on a lease, obtain money, services, credit or property of any kind or nature or anything of value including an obligation or debt of state taxes which is past due or presently due (5) by one who does not have an account with the bank on which the check was drawn or that he has insufficient funds in the bank to cover the check or (6) by the making of an incorrect or insufficient signature on such a check so that it cannot be paid on presentation. S.C. Code Ann. § 34-11-60(a) (Supp. 2012).

The first element appears to have the broad scope of forgery in that the offense can be committed by any one of a number of different acts. Either the creation or uttering of such a check will suffice. Still it would appear that the check would have to be uttered by someone, if not its maker, in order for the property to be obtained. There are no reported South Carolina cases involving a fraudulent check prosecution for a check which had not been uttered. A forgery of course can be successfully prosecuted even though the forged instrument was never uttered. E.g., State v. Bullock, 54 S.C. 300, 32 S.E. 424 (1899). The fraudulent check offense can be committed by stopping payment on a check if done with intent to defraud. S.C. Code Ann. § 34-11-80 (1987).

The second element definitely limits the scope of the offense to checks and drafts, unlike forgery, the object of which may be any instrument of legal efficacy. E.g., State v. Murray, 72 S.C. 508, 52 S.E. 189 (1905) (a lease).

The fraudulent check must be drawn or uttered with the intent to defraud. An early false pretenses case in which the...