State v. Losey

475 P.2d 430 (1970)

STATE of Oregon, Respondent, v. Clyde William LOSEY, Appellant.

Court of Appeals of Oregon, Department 2.

Argued and Submitted September 28, 1970.

Decided October 15, 1970.

Rehearing Denied November 12, 1970.

Review Denied December 15, 1970.

Peter L. Powers, Albany, argued the cause for appellant. With him on the brief were Weatherford, Thompson, Horton & Jordan, Albany.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and Jacob B. Tanzer, Sol. Gen., Salem.

Before SCHWAB, C.J., and LANGTRY and BRANCHFIELD, JJ.

LANGTRY, Judge.

Defendant appeals from conviction of obtaining money by false pretenses. ORS 165.205.

The defendant cashed a check purportedly made and signed by his wife, Karen R. Losey. The store clerk was questioned extensively about the representations defendant made in order to get her to cash the check. Her first response was that defendant said "his bank account was transferred up here to the First National Bank from the Florence bank." The clerk testified that she relied upon the check as well as the representations.

On the trial day, before commencing trial defendant's counsel moved for a postponement in order to find his wife, whom he wanted as a witness. There was no compliance with ORS 136.070, which requires *431 an affidavit showing good cause as a prerequisite for such a postponement. Defendant now asserts that the trial judge abused discretion in refusing to postpone. This contention is without merit for reasons set out in State v. Brauhn, 247 Or. 430, 430 P.2d 1012 (1967); State v. Young, Or. App., 90 Adv.Sh. 17, 463 P.2d 374 (1970); and State v. Sands, Or. App., 90 Adv.Sh. 1397, 469 P.2d 795 (1970).

Neither the defendant nor his wife had an account in the bank upon which the check was drawn. The defendant contends that the representation he made that the account was "being transferred" was a representation of something to be done in the future and that the court erred in submitting the case to the jury. The transcript shows that, although the clerk's testimony conflicted about whether defendant told her the money was already transferred, she explained on cross-examination:

"Listen, sir, if he was transferring, he had to open up an account, didn't he? So apparently I don't know how much money he had in there. I assumed now that he hasn't even opened one but he led me to believe that he had opened up his account * * * and the rest of the money was to be transferred * * but he did not lead me to believe that he didn't have enough money in there to cover that check."

This testimony, plus her assertion that she relied upon the check, made a jury question.

"* * * The giving of such an instrument is * * * a representation that the drawer has money or credit with the bank * * *. * * * [I]t is not necessary that the drawer should have told the person to whom he gave the check that he had funds or credit in the bank * * *." State v. Hammelsy, 52 Or. 156, 158-159, 96 P. 865, 866, 17 L.

R.A., N.S., 244, 132 Am.St.R. 686 (1908).

The defendant assigns as error an instruction which defined a false writing. No exception was taken to the instruction. We will not consider the alleged error. State v. Andrews, Or. App., 90 Adv.Sh. 1371, 469 P.2d 802 (1970).

The last alleged error is that the trial court should have set aside the conviction on defendant's motion because ORS 165.205 violates defendant's constitutional right to equal protection of the law. The alleged unconstitutionality is in the statute's provision that allows punishment for either a felony or a misdemeanor, after conviction, in the discretion of the sentencing judge. The Oregon Supreme Court considered the same challenge to another statute with similar sentencing provisions and rejected it. State v. McDonald, 231 Or. 24, 361 P.2d 1001 (1961), cert. denied, 370 U.S. 903, 82 S. Ct. 1247, 8 L. Ed. 2d 399 (1962).

Affirmed.