Commonwealth v. Lena Miedl,

second marriage, if there was no cohabitation, it will be the duty of the Court to instruct the jury to acquit the defendant. That question can be raised and the defendant can have the full benefit of it on the trial.

It appears that the complaint was made by Otto Miedl. The defendant contends that a complaint by him will not support such an indictment. In Commonwealth v. Eberly, 22 LANC. LAW Review 70, this Court, following Commonwealth v. Barr, 25 Sup. 609, held that an indictment should not be quashed because the husband of the woman with whom the defendant was alleged to have committed adultery made the complaint and testified before the Grand Jury. In Commonwealth v. McNew, 31 LANC. LAW REVIEW 85, we again discussed the same proposition, and held that "an indictment for adultery will not be quashed on motion because the information was made by the husband of the defendant," when this question was not raised on a proceeding for discharge, but after the indictment was found. In Commonwealth v. Mozart, 30 LANC. LAW REVIEW 147, we modified our conclusion in Commonwealth v. Eberly, and held that a wife could not make an information against her husband for adultery. The question in that case was properly raised on habeas corpus before an indictment was found by the Grand Jury. The situation here is different. The defendant did not sue out such a writ, and has filed, not even a motion to quash, but a demurrer. This necessarily only goes to such defects as are apparent on the face of the indictment, and nothing more, and the indictment on its face, we think, is sustainable.

We, therefore, now overrule the demurrer.

Demurrer overruled.

Court of Quarter Sessions of Lancaster County

Commonwealth v. Joseph Loose.

Indictment for giving bad check-Time of giving - Reduction of deposit by overdraft and other check

1919, P. L. 70.

Banking

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Act of April 18.

On the trial of an indictment under the Act of April 18, 1919, P. L. 70, for giving a check without sufficient funds to pay it, it is no defense that the defendant is justified in refusing to pay the check because the automobile which he obtained from the prosecutor was not as represented.

A bank has a right to charge up against an overdraft a deposit subsequently made.

On indictment for giving a check without sufficient funds a new trial will be granted, where it appears that another check had been given to another party by the defendant on the same day and presented and paid that day, but the time was not shown, and the question was not clearly submitted to the jury as to whether the defendant's balance had been reduced by it or not at the time when he gave the check to the prosecutor.

Indictment for giving check without sufficient funds. Rule for a new trial. November Sessions, 1920, No. 46.

Commonwealth v. Joseph Loose.

B. F. Davis, for rule.

John A. Nauman and Wm. C. Rehm, District Attorney, contra.

January 15, 1921. Opinion by HASSLER, J.

The defendant was tried and convicted on an indictment charging him with having drawn and delivered a check without having sufficient funds in the bank, upon which it was drawn, to pay it, with intent to defraud the payee named in it. The indictment is under the Act of April 18, 1919, P. L. 70. The first section of this Act provides that any one who shall make or draw or utter or deliver a check, or order for the payment of money, upon any bank, knowing at the time that he has not sufficient funds in, or credit with, such bank, for the payment of same, shall be guilty of a misdemeanor. The third section provides that the refusal of the bank to pay the check shall be prima facie evidence of intent to defraud and of knowledge of insufficient funds in, or credit with, the bank upon which the check is drawn, unless he shall have paid the drawee thereof the amount due therein, together with interest and protest fees, within ten days after receiving notice that such check has not been paid by the drawee.

It was proven on the trial that on August 30, 1920, the defendant gave to Morris Rossman, the prosecutor, a check on the Farmers National Bank of Lititz for $87.00 in payment of goods purchased at that time, and for a difference due said Rossman in the exchange of an automobile made at that time. The check was at once deposited in the Gap National Bank and presented to the Lititz Bank on September 2, 1920, when it was protested, as defendant had $6.82 on deposit in that bank at that time. It was also shown that on the morning of August 30, 1920, the defendant deposited $130.00 to his account in the Lititz Bank, and that his account was overdrawn $20.00, so that his balance when he made this deposit was $110.00. Later in the day his check for $35.00 was presented to the bank and paid, which reduced his balance to $75.00, or less than the check given to the prosecutor in this case. On September 1, 1920, he drew out $68.22. It was shown that the bank closed at three o'clock on August 30, 1920. The prosecutor testified that the check was given to him at three or four o'clock in the afternoon. If this is true the defendant would not have had sufficient money in bank to meet the check given to Rossman at the time he gave it, and would have been guilty of the misdemeanor of which he was charged. He did not pay to the prosecutor the amount of the check with interest and protest fees within ten days after he obtained knowledge that the check had been protested.

The defendant and another witness testified that the check was given earlier in the day, one of them said about noon and the other about one o'clock. It does not appear at what hour the check for $35.00 was paid by the Lititz Bank. If it did not reach the bank until after the check was given to Morris Rossman by the defendant, then there were sufficient funds in the bank to meet the check given to Rossman at the time it was given, and the defendant would not have com

Commonwealth v. Joseph Loose.

mitted the offense charged in the indictment. This question was not clearly submitted to the jury, and we are of the opinion that the defendant should be granted a new trial. We, therefore, make absolute the rule to show cause why a new trial should not be granted.

There is no merit in the contention of the defendant that he is justified in refusing to pay the check because the automobile which he obtained from the prosecutor was not as represented. We refused to permit any such defense at the trial, and are satisfied that in doing so we committed no error. It is not a question of bargaining between these two parties, but the sole question is whether the defendant gave a check upon a bank at a time when he did not have sufficient funds or credit to meet it.

Upon the argument of this rule the defendant raised another question, which is that the bank had no right to charge against the account of the defendant the amount of his overdraft when he made the deposit of $130.00 on the 30th of August, 1920. There is no merit in this contention.

Bank v. Mason, 95 Pa. 113, one of the cases cited in support of this position, only decides that a bank has no right to allege that money deposited by one person belongs to another. Dick's Estate, 183 Pa. 647, another case cited in support of his position, does not sustain it. There the only question was whether a trustee, who was a private banker, could be compelled to account for profits made with the money of the bank, when part of that money were the trust funds deposited in the bank. In Bowles on the Modern Law of Banking, vol. 1, page 200, it is said: "Any deposit received from a check subsequent to an overdraft may be applied in payment of the overdraft, for there is a strong presumption that he intends to have it thus applied." In Farmers National Bank of West Chester v. Marshall, 9 Sup. 621, it is decided that an overdraft would be in exactly the same position as a note which had become due and which the bank had every right to charge up against the maker's deposit, and as far as any endorsers are concerned. would be bound to charge against the deposit of the maker. In Owens v. Stape, 39 Ill. (Appeals) 653, it is said, "The drawing of a check by a depositor in a sum greater than the amount which he had on deposit in itself implies a promise on the part of the depositor to re-pay to the bank the amount by which the account is overdrawn." In Nicols . Stape, 46 Nebraska 715, it is decided that a deposit made subsequent to an overdraft is presumed, in the absence of evidence to the contrary, to be intended to apply towards the payment of the overdraft.

We are satisfied that none of the objections raised by the defendant point out any error that would justify a new trial, but, as we have said, being of the opinion that there is a question whether at the time the check was given by the defendant to the prosecutor he had sufficient money in bank to pay it, we will make absolute the rule for a new trial.

Rule made absolute.