Glover v. Dorsey , 27 Ga. App. 105 ( 1921 )

Stephens, J.

1. The provisions of the Penal Code (1910), § 242, declaring it a crime for any person to have in his possession any false, forged, counterfeit, or altered check, as therein described, with intention fraudulently to pass the same, has reference to a cheek only upon a bank of this State or an incorporated bank whose notes or bills are in circulation in this State. This section is in pari materia with section 238 of the Penal Code. See Penal Code of 1833 (Ga. L. 1833, p. 167, §§ 3-7) ; Penal Code of 1817 (Lamar’s Digest, 629, §§ 49-53); Penal Code of 1816 (Lamar’s Digest, 584, §§ 56-60).'

(a) It follows, therefore, that an indictment which charges a person with having in his possession a false, forged, counterfeit, or altered check, with intention fraudulently to pass the same, but which does not allege that such check was on a bank of this State or on an incorporated bank whose notes or bills are in circulation in this State, is fatally defective and sets out no offense against the penal laws of this State.

2. “ Sureties upon a criminal recognizance may set up, in defense to a scire facias to forfeit the same, that the indictment against their principal is fatally defective, in that it fails to charge any offense against the penal statutes of the State.” Candler v. Kirksey, 113 Ga. 309 (38 S. E. 825, 84 Am. St. R. 247).

3. This being a scire facias upon a criminal recognizance wheré the sureties defended upon the ground that the indictment contained a charge as set out above, in paragraph 1 (a), and was therefore fatally defective, in that it failed to set out an offense against the penal laws of the State, it was error to strike, on demurrer, that part of the defendants’ plea setting up this defense.

Judgment reversed.

Jenkins, P. J., and Hill, J., concur

Forfeiture of recognizance; from Colquitt superior court — Judge Thomas. October 14, 19.20.

A. J. McDonald, Dowling & Askew, for plaintiff in error. Clifford E. Hay, contra.