STACY, C. J., concurring; ADAMS, J., dissenting.
CLARKSON, J.
The defendant was indicted under chapter 62, Public Laws 1927, generally known as the "Bad Check Law," as follows: "It shall be unlawful for any person, firm or corporation, to draw, make, utter or issue and deliver to another, any check or draft on any bank or depository, for the payment of money or its equivalent, knowing at the time of the making, drawing, uttering, issuing and delivering such check or draft as aforesaid, that the maker or drawer thereof has not sufficient funds on deposit in or credit with such bank or depository with which to pay the same upon presentation. Any person, firm or corporation violating any provision of this section shall be guilty of a misdemeanor. The word `credit' as used herein shall be construed to mean an arrangement or understanding with the bank or depository for the payment of any such check or draft."
The defendant introduced no evidence, and at the close of the State's evidence made a motion to dismiss the action. C. S., 4643. This motion of defendant was overruled by the court below and in this we think there was error. The evidence on the part of the State was to the effect that the defendant, who lived at Greenville, N.C. employed one Leland Mason to buy fish and oysters for him, in Carteret County, N.C. He gave him a check book with blank checks in it, on the Greenville Banking and Trust Company, with authority to draw checks on defendant's account in said bank. Mason drew a check on said bank payable to Gaskill Bros., of Morehead City, N.C., for oysters purchased by him from them on 11 February, 1930. The check was for $72.60, and the oysters were delivered on defendant's truck. The check was signed "C. W. Baker, by Leland Mason." The check was deposited by Gaskill Bros., and returned unpaid for insufficient funds. Other checks signed this way by Mason were paid. Baker was not present when the check was given by Mason.
Criminal statutes are construed strictly. The statute requires, as one of the ingredients of the crime, that when the check is delivered to another that the maker or drawer must have knowledge that he has insufficient funds on deposit in or credit with the bank on which the check is drawn, with which to pay same on presentation. S. v. Crawford, 198 N.C. 522. The check was not drawn by defendant, but by his agent, Mason, and Baker was not present; so, at the time the check was drawn and delivered to Gaskill Bros. by Mason, there is no evidence that defendant knew either the time or the amount of the check that was drawn. At the time the check was delivered, the record discloses no evidence that Baker had actual or implied knowledge that there was insufficient funds on deposit, or such actual or implied knowledge so that he could make arrangements to have credit with the bank to meet the check. One cannot be convicted of a crime on conjecture. Of course defendant is liable on the record in a civil action, and it goes without saying that he should pay his debt contracted by his agent for the oysters he received, but to convict him for a crime under the statute, either actual or implied knowledge is necessary when the check is delivered. The evidence is mere conjecture on this record and not sufficient to be submitted to a jury. The judgment is
Reversed.