Pallage v. State

253 S.W.2d 47 (1952)

PALLAGE v. STATE.

No. 26095.

Court of Criminal Appeals of Texas.

December 3, 1952.

John Cutler, Houston, for appellant.

George P. Blackburn, State's Atty., of Austin, for the State.

WOODLEY, Commissioner.

The conviction is for giving a draft without sufficient funds as that offense is defined in Art. 567b, Vernon's Ann.P.C.; the punishment, 30 days in jail and a fine of $500.

Section 1 of said Article 567b, V.A.P.C. reads as follows:

"It shall be unlawful for any person to procure any article or thing of value, or to secure possession of any personal property to which a lien has attached, or to make payment of any pre-existing debt or other obligation of whatsoever *48 form or nature, or for any other purpose to make or draw or utter or deliver, with intent to defraud, any check, draft or order, for the payment of money, upon any bank, person, firm or corporation, knowing at the time of such making, drawing, uttering or delivering, that the maker, or drawer, has not sufficient funds in, or on deposit with, such bank, person, firm or corporation, for the payment of such check, draft or order, in full, and all other checks, drafts or orders upon such funds then outstanding."

It may be seen that an essential element of the offense charged is that of knowledge of the drawer or maker that he did not have sufficient funds on deposit with the drawee for the payment of the draft.

No such allegation is found in the instant complaint or information. Our able state's attorney confesses that in the absence of such averment, no offense is charged.

The judgment is reversed and the prosecution ordered dismissed.

Opinion approved by the Court.