WORTHLESS CHECKS § 5. Included Offenses. § 11. Pleas and Defenses. § 15. Evidence Weight and Sufficiency. § 19. Variance. § 20. Instructions to Court. § 5.1. Generally. § 5. Included Offenses A specification alleged that the accused did, with intent to deceive, wrongfully and unlawfully make and utter a certain check, then not intending to have sufficient funds in the bank available to meet payment of the check upon its presentment for payment and did thereafter wrongfully and dishonorably fail to place sufficient funds in the bank for payment of said check upon its presentment for payment. On motion by the defense, the law officer amended the specification by striking out the allegation that the accused did thereafter wrongfully and dishonorably fail to place sufficient funds in the bank for payment of the check upon its presentment. However, despite his amendment of the specification the law officer advised the court in his instructions that making and uttering a worthless check, by failing to maintain sufficient funds for payment was a lesser included offense of the offense charged. Thereafter, the court found the accused guilty, by exceptions and substitutions, of wrongfully and dishonorably failing to maintain sufficient funds in the bank for payment of the check upon its presentment. Held: Failure to maintain sufficient funds in the drawee bank for payment of a check is a separate and distinct offense from, and not a lesser included offense within, that of making and uttering a check with intent to deceive. Accordingly, the accused was improperly convicted of a separate and distinct offense from, and not lesser included within that charged and the findings must be set aside. (Citing ACM S-1768, Brewer, 1 CMR 872, 875, 876; ACM 4054, Branum, 1 CMR 677, 678; ACM 3872, Burton, 4 CMR(AF) 769, 774; ACM 4473, Barlow, 3 CMR 746, 749; ACM 2560, Osbourn, 2 CMR (AF) 871, 879; ACM 1879, Stone, 2 CMR (AF) 764, 779, 782. Distinguishing ACM S-1768, Brewer, 1 CMR 872; U. S. v. Arnovits (No. 1434), 3 USCMA 538, 540-541, 13 CMR 94, 96, 97 and CM 352775, Arnovits, 8 CMR 313, 321, 322.) ACM 8758, Robinson (1954) 16 CMR 766. § 11. Pleas and Defenses § 11.29. Ignorance or mistake. See United States v. Rowan, infra § 20.11. § 15. Evidence Weight and Sufficiency § 15.9. Receipt of present value for checks. The accused was convicted of larceny by check. The evidence established that on 2 October 1953 a check in a certain amount bearing the accused's full name and drawn upon his account with a certain branch of the American Express Company was cashed. On 12 October 1953, the accused visited the branch of the Express Company where he had his account and pointed out the check in question as a check which he had not made. Upon his written statement to that effect and upon his specific request that his account be credited in the amount of the check, the branch credited his account. Subsequently, the accused admitted that he had written the check. Held: No offense was committed on 2 October 1953, the date alleged, regardless of whether the check of that date was uttered with some fraudulent scheme in the mind of the accused, since the bank parted with nothing at that time, the account of the accused having been adequate to cover the amount of the check, and the funds received by him having resulted in a debit to his account. However, the larceny alleged was consummated upon the accused's receipt of the amount of the check involved as a credit to his bank account since an allegation that the accused obtained a certain sum of money is supported by proof that the amount concerned was received by him in the form of a credit to his bank account. (Citing Simmons v. State, 242 Ala 105, 4 So2d 905; Medders v. State, 113 SW 270; State v. Carey, 128 Minn 481, 151 NW 186; State v. Mason, 62 Mont 180, 204 P 358; MCM, 1951, par 200a (5).) Held also: No question of variance as to date arises from proof that the offense was completed on 12 October rather than on 2 October as alleged. The evidence relative to the transaction of 2 October could reasonably be construed as indicating that the accused's fraudulent design had its inception at that time or earlier. However, even assuming that the accused's fraudulent design arose for the first time on or about 12 October, the result remains the same since only a single offense of larceny was established to have been committed. (See U. S. v. Hopf (No. 372), 1 USCMA 584, 5 CMR 12; ACM 3709, Sonnenschein, 4 CMR (AF) 778; cf. ACM S-4796, Cooks, 8 CMR 799.) ACM 9032, Baldwin (1954) 17 CMR 572. § 19. Variance § 19.7. Identity of payee or person to whom uttered. Each of four specifications of a worthless check charge alleged that the check involved was uttered "to Park Motel and Grocery". However, there was no testimony in support of this allegation. On the other hand, four related specifications of a charge of larceny by check involving the same checks alleged the money to be the property of one R. and deposition testimony of R. and his wife supported this allegation. The checks themselves showed that each was made out to cash and bore the endorsement signature of R.'s wife. The only evidence connecting R. and his wife with the Park Motel and Grocery consisted of two other checks which bore endorsements indicating that R. and his wife were doing business as the Park Motel and Grocery. Held: In the circumstances there exists a fatal variance between a material allegation and its proof. Accordingly, there was a failure of proof requiring disapproval of the findings of guilty of the four worthless checks specifications in question. (Cf. ACM S-3535, Dennison, 5 CMR 581; ACM 5336, MacGlashen, 5 CMR 690; 35 CJS p 702, sec 49 (g); 37 CJS p 88, sec 77.) CGCM 9814, Martin (1954) 16 CMR 446. $ 19.21. Time or place of offense. Proof that offense alleged on 2 October was consummated on 12 October as not variance, see ACM 9032, Baldwin, supra § 15.9. § 20. Instructions to Court § 20.3. Elements of offenses, generally. In instructing as to a charge of larceny the law officer apprised the court of each essential element of larceny under UCMJ, Art 121, but he made no reference to the specific type of larceny involved which was larceny by check. The defense counsel did not ask that the instructions be made more specific. Held: The instructions given were sufficient as a matter of law. However, where a larceny specification is based on larceny by check rather than common law theft, it is desirable that the law officer give the court some additional clarifying instructions. For this purpose the language of the subparagraph entitled "False pretense" at page 359 of the Manual for Courts-Martial is indicated. CGCM 9814, Martin (1954) 16 CMR 446. The instructions on a charge of making and uttering checks and thereafter wrongfully and dishonorably failing to bank sufficient funds for their payment failed to define "dishonorably". Held: Since the accused was also found guilty of larceny by check involving the same checks, upon sufficient instructions which required the court to find a larcenous intent, there could be no prejudice in omitting a definition of dishonorably, since by necessity the court must have found that the checks were uttered in bad faith and dishonorably. (Cf. U. S. v. Higgins (No. 3145), 4 USCMA 143, 15 CMR 143; NCM 5543, Hanson, 6 CMR 716.) Held also: The evidence compelled a conclusion that the checks were uttered dishonorably so that the absence of a request for a definition precludes urging the failure to define as error. (Citing U. S. v. Eagleson (No. 2353), 3 USCMA 685, 14 CMR 103.) CGCM 9814, Martin (1954) 16 CMR 446. $20.7. Included offenses. The accused was charged with wrongfully and "dishonorably" failing to maintain sufficient funds in the bank for payment of a check which he had drawn. The president instructed as follows: "The term 'dishonorably' as used in the specification imports that the failure to maintain sufficient funds was accompanied by an improper state of mind or attitude on the part of the accused which may consist and be shown by evidence of a wrongful intent, guilty knowledge, dishonest purpose, bad faith, or similar attitude which normally constitutes an adverse reflection upon the character, probity and integrity of the accused. There is a lesser included offense to the specification of failure to maintain sufficient funds. A failure to maintain sufficient funds as a result of only such irresponsibility, indifference or negligence as brings discredit upon the armed forces is a punishable offense which may be found by excepting the word 'dishonorably' and substituting therefor, the word 'discreditably'. A failure to maintain sufficient funds for the payment of a check is not a punishable offense if it is more the result of misfortune than of fault. Discredit as used here means, 'to injure the reputation of.'" The accused was found guilty by exceptions and substitutions of wrongfully and "discreditably" failing to maintain sufficient funds. Held: Insofar as the above instruction attempts to describe a lesser included offense it is not supported by authority. A wrongful and discreditable failure to maintain funds in a bank to pay a check as here distinguished from a wrongful and dishonorable failure to do so does not constitute a criminal offense punishable under the Uniform Code of Military Justice. Nothing in the Code or the Manual for Courts-Martial, 1951, indicates that there is authorized for courtmartial prosecution any offense involving worthless checks which dispenses with the requirement of an improper state of mind as is here accomplished by the substitution of the word "discreditably" for the word "dishonorably". (Citing ACM S-6171, Worsham, 10 CMR 653 and cases there cited; U. S. v. Arnovits (No. 1434), 3 USCMA 538, 13 CMR 94; CM 360771, Wheeler, 9 CMR 306; Morissette v. U. S., 342 US 246, 96 L ed 288, 72 S Ct 240.) CGCMS 20106, Whitney. 11 January 1955. § 20.11. Defenses, generally. The accused was found guilty of larceny by check. The defense was based on evidence intended to show that the accused thought he had an account in the drawee bank and sufficient funds on deposit to satisfy payment of the checks. The law officer instructed that the accused is chargeable with knowledge of the state of his bank account and that he should have knowledge of, or have taken steps to ascertain, its sufficiency. At the request of the defense, he further instructed that the nature of the alleged larceny was by false pretense, that the pretense must be in fact false when made and when the property is obtained, that it must be knowingly false in the sense that it is made without honest belief in its truth and that one who represents that he presently intends to perform a certain act in the future, but who at the time of his representation does not intend to perform the act, makes a false representation and thus a false pretense. Held that: — the final instructions given by the law officer were a correct statement of the law. Although no specific mention was made of mistake of fact, the instruction advised the court of the proper test of determining the existence of a false pretense and constituted a statement of the law relative to mistake of fact in false pretense cases. If the defense counsel desired his defense more specifically presented he should have requested clarification. (Citing MCM, 1951, par 200a (5); U. S. v. Rowan (No. 3635), 4 USCMA 430, 16 CMR 4; U. S. v. Perruccio (No. 3569), 4 USCMA 28, 15 CMR 28.) an instruction to the effect that an accused can be found guilty of larceny, even though he entertained a mistaken belief in the existence of his account, so long as his mistake of fact was not reasonable under the circumstances, is improper for offenses requiring a specific intent since it amounts to an instruction that the accused can be found guilty of larceny on the basis of mere negligence. (Citing U. S. v. Rowan (No. 3635), 4 USCMA 430, 16 CMR 4; ACM 8467, Bedell, 16 CMR 527; U. S. v. Lampkins (No. 3749), 4 USCMA 31, 15 CMR 31; U. S. v. Perruccio (No. 3569), 4 USCMA 28, 15 CMR 28.) - - the first portion of the law officer's instruction, that the accused should have knowledge of or have taken steps to ascertain the sufficiency of the funds in his account was not erroneous as amounting to an instruction that the accused could be found guilty of larceny, even though he entertained a mistaken belief in the existence of his account, so long as his mistake of fact was not reasonable under the circumstances. The instruction given was a reasonable statement of the duty incumbent upon all members of society who rely upon checks for financial negotiations. In no wise does it express to the court a standard of guilt less severe than that required by the Manual. Standing alone, such an instruction might tend to mislead the court, however, viewing the instructions as a whole the court could not have been misled. (Citing ACM 6547, Thompson, 11 CMR 712; ACM 6638, Stubenberg, 10 CMR 702; ACM 662, Lea, 1 CMR (AF) 214; U. S. v. Sippel (No. 2689), 4 USCMA 50, 15 CMR 50 and other cases. Distinguishing U. S. v. Rowan (No. 3635), 4 USCMA 430, 16 CMR 4; ACM 8467, Bedell, 16 CMR 527; ACM S-9235, DeSilvia, 16 CMR 699.) ACM 8942, Steenberg (1954) 16 CMR 775. On larceny by check charges, the accused contended that the checks were drawn with the honest belief that he had a checking account with the drawee bank in that his sister had agreed to open a checking account in the accused's name at the bank. However, his sister "used her own judgment" and sent the money to the accused's wife and the accused was not informed of this diversion of the money. The law officer instructed the court that an honest and reasonable mistake as to the existence of the account would be a defense to the charge, but that the ignorance or mistake must be honest and reasonable and that if it was not reasonable, that is, if it was the result of carelessness or fault on his part, it was not a defense. Held: The instruction was erroneous inasmuch as it permitted the court to find the accused guilty even though he honestly believed that the checks would be paid upon presentation, provided the members of the court concluded that the accused arrived at that belief without obtaining the information which would be gathered by a reasonable man before the latter would negotiate a check. In both the ordinary offense of larceny and the offense of larceny by false pretenses an honest mistake of fact is a sufficient defense, without regard to the reasonableness of the mistake. (Cit |