Speakman, Hegarty and Conlon. The opinion of the court was delivered by Conlon, J.c.c. (temporarily assigned).
[32 NJSuper Page 90] The two appellants were found guilty in the Bergen County Criminal Judicial District Court on two separate but identical complaints which charged respectively that Peter J. Riccardo,
president of the Normandie Finishing Co., Inc., and Frank P. Mazza, secretary-treasurer thereof, did with intent to defraud, make, utter and deliver to Smith-Robinson, Inc., a check for the amount of $265 drawn on the Rutherford Trust Company, knowing at the time of the making thereof that there were insufficient funds in said bank to meet said check upon its presentation for payment, in violation of N.J.S. 2 A:111-15.
The complaints were tried together before the court without a jury, and, after conviction, the appeals were consolidated. There is no transcript of the proceedings and the matter is before this court on a statement of evidence and proceedings in accordance with R.R. 1:6-3 (R.R. 2:6). The case was tried and defended on the theory that the only defense to the complaints was the contention of the defendants that while the check was dated December 4, 1953, it had in fact been delivered to the payee some two days prior and was, consequently, a postdated check for the giving of which the defendants could not be convicted under the statute in question. State v. Barone , 98 N.J.L. 9 (Sup. Ct. 1922).
The sole grounds of appeal were: (1) that the trial court's finding as a fact that the check was not postdated was contrary to the weight of the evidence, and (2) that the court rejected some collateral testimony which the defendants claimed had a favorable bearing on their contention that the check was postdated. Excepting to indicate that in the absence of a transcript of the testimony there is not sufficient ground for this court to reverse the factual finding of the trial court or to pass upon the relevancy of the collateral testimony, it is unnecessary to discuss these matters since during the argument of the appeal a circumstance was disclosed which rendered a conviction in this case contrary to law.
A reading of the record on appeal and an examination of the exhibits made it apparent that the check in question was signed and delivered by the defendants as officers of Normandie Finishing Co., Inc., in payment of an account of that company already due to the Smith-Robinson Co., the
payee of the check, and that no consideration passed from the payee to the defendants by virtue of the check. When that circumstance was called to the attention of the prosecutor during the oral argument, and because there had been no factual finding in that respect by the trial court, with a commendable desire to further the cause of justice he reviewed his file and, after confirming the fact, stipulated before this court that the check signed by the defendants and dated December 4, 1953 was in fact given in payment of a shipment of goods made by the payee on July 6, 1953. This court was thereupon confronted with the question of the validity of a conviction based solely upon the fact that the check in question was dishonored by the bank without any consideration having moved from the payee to the defendants. Although the question was not raised in the court below nor in the original briefs filed herein, this court feels constrained to consider it in view if the provisions of R.R. 1:5-1 (R.R. 2:5) which provide that this court may notice plain errors affecting the substantial rights of the defendant although they were not brought to the attention of the trial court. We conceive that the situation presented here requires the application of the rule.
The statute under which these convictions were had (N.J.S. 2 A:111-15) provides in essence as follows:
"Any person who * * * as an officer or agent of any corporation, * * * with intent to defraud, makes, draws, utters or delivers a check, draft or order for the payment of money, upon any bank or other depository, knowing at the time of so doing that the maker, or drawer, has no funds or insufficient funds in, or credit with, such bank or other depository for the payment of such instrument, in full, upon its presentation, although no express representation is made in reference thereto, is guilty of a misdemeanor * * *."
Section 16 provides as follows:
"The making, drawing, uttering or delivering of a check, draft or order as stated in section 2 A:111-15 of this title shall be prima facie evidence of intent to defraud, and the certificate of protest of nonpayment of ...