State v. Pilling , 53 Wash. 464 ( 1909 )

Mount, J.

(dissenting) — I cannot agree that the answer of the court to the question of the jury was reversible error. The jury simply desired to know how they were to find the intention of defendant, and for that purpose asked the court: “If a man issues a check on the bank, knowing at the time of the issue of the check that there was not suf.ficient funds or credit in the bank to meet the check, would that be considered intent to defraud?” If the court had simply answered this question in the affirmative, the answer would clearly have been correct, because the question covers all the essential elements of the crime as defined by statute, except the intent to defraud. Intent must necessarily be inferred from the facts stated. It is seldom that a man orally declares his intention, especially where it is a criminal one. Such intention must be presumed or found from the acts done. Otherwise few crimes could be proven. It is true the court did not answer the question directly in the affirmative. If the answer stood alone it would be erroneous, because it omitted the essential element of knowledge that the drawer had no funds in the bank, but the answer was plainly given with reference to the facts stated in the question, and in substance was an affirmative answer. The whole question and answer must be construed together and not independently. It will not do to eliminate the question which called forth the answer. It is plain that the jury had already determined the facts stated in the question, which included knowledge that appellant had no credit at the bank, and they desired to know if from those facts they might deduce an intention to defraud, and the effect of the answer, when considered in the fight of the question, was that they might do so. The jury plainly could not have been misled to believe that the element of knowledge was not necessary to be found by them. The answer to the question was, therefore, not prejudicial error. The effect of the majority opinion is to place a technical construction upon the answer without reference to the question asked, and to assume that the jury was misled thereby when it plainly appears otherwise.

In my opinion, the judgment should be affirmed.

Crow and Dunbar, JJ., concur with Mount, J.