It is unlawful for a person to issue in exchange for anything of value, with intent to defraud, any check, draft or order for payment of money upon any bank or other depository, knowing at the time of the issuing that the offender has insufficient funds in or credit with the bank or depository for the payment of such check, draft or order in full upon its presentation.

History: 1953 Comp., § 40-49-4, enacted by Laws 1963, ch. 315, § 4.

Cross references. — For fraud, see 30-16-6 NMSA 1978.

For offense of falsely obtaining services or accommodations, see 30-16-16 NMSA 1978.

The antecedent or preexisting debt exception does not apply to criminal prosecutions under the Worthless Check Act. State v. Cruz, 2011-NMSC-038, 150 N.M. 548, 263 P.3d 890, rev'g 2010-NMCA-011, 147 N.M. 753, 228 P.3d 1173.

A violation of the Worthless Check Act does not require a contemporaneous transaction. State v. Cruz, 2011-NMSC-038, 150 N.M. 548, 263 P.3d 890, rev'g 2010-NMCA-011, 147 N.M. 753, 228 P.3d 1173.

Check issued to pay earned wages. — Where defendant issued payroll checks to pay workers one week after the end of the pay period and the checks were issued with insufficient funds to cover the checks, defendant violated Section 30-36-4 NMSA 1978. State v. Cruz, 2011-NMSC-038, 150 N.M. 548, 263 P.3d 890, rev'g 2010-NMCA-011, 147 N.M. 753, 228 P.3d 1173.

Checks issued to members of an Indian tribe. — Where defendant issued checks to pay the wages of three members of an Indian tribe for performing work on a construction project that was located on Indian land; the checks were delivered to the payees on Indian land; the checks were signed by defendant outside Indian land; defendant gave the checks to an employee of defendant's construction company at a meeting place that was located outside Indian land for delivery to the payees; the payees cashed the checks at a store that was located outside Indian land; and defendant's bank dishonored the checks for insufficient funds, New Mexico had jurisdiction to prosecute defendant for issuing worthless checks. State v. Cruz, 2010-NMCA-011, 147 N.M. 753, 228 P.3d 1173, rev'd, 2011-NMSC-038, 150 N.M. 548, 263 P.3d 890.

A check issued in payment of wages earned is payment of a pre-existing debt and is not encompassed within the Worthless Check Act. State v. Cruz, 2010-NMCA-011, 147 N.M. 753, 228 P.3d 1173, rev'd, 2011-NMSC-038, 150 N.M. 548, 263 P.3d 890.

Check issued to pay earned wages. — Where defendant issued checks to pay the wages of the payees for performing work on a construction project; the payees were paid every Friday for work they performed during the week ending the previous Friday; and defendant did not receive anything of value in exchange for issuing the checks and the payees performed the work in exchange for a promise to pay, not for the checks themselves, the checks were issued in satisfaction of a debt already owed to the payees by virtue of their work and were not encompassed within the Worthless Check Act. State v. Cruz, 2010-NMCA-011, 147 N.M. 753, 228 P.3d 1173, rev'd, 2011-NMSC-038, 150 N.M. 548, 263 P.3d 890.

Section not void for vagueness. — This section gives one notice of the prohibited act; it is not void for vagueness. State v. Libero, 1978-NMCA-055, 91 N.M. 780, 581 P.2d 873, cert. denied, 92 N.M. 180, 585 P.2d 324.

"Issue" and "giving" same. — The term "issue" in this section is used in the same sense as "giving" a check in 30-36-3 NMSA 1978, and "giving" a worthless check constitutes a representation that the drawer has credit with the drawee bank for the amount involved. State v. Libero, 1978-NMCA-055, 91 N.M. 780, 581 P.2d 873, cert. denied, 92 N.M. 180, 585 P.2d 324.

"Issue" and "give" mean delivery to holder with passing of interest from one to another. To violate this section, one must issue the check in exchange for value, with the requisite intent and knowledge. State v. Libero, 1978-NMCA-055, 91 N.M. 780, 581 P.2d 873, cert. denied, 92 N.M. 180, 585 P.2d 324.

Timing of delivery of goods/services and issuance of checks. — The fact that the goods and services were delivered before the check was issued did not signify that an exchange did not occur within the meaning of this section. A worthless check is given for something of value if the worthless check is issued as part of a contemporaneous transaction between the parties in which something of value is exchanged for the check, without regard to whether the thing of value is delivered before or after the worthless check is issued. State v. Platt, 1992-NMCA-110, 114 N.M. 721, 845 P.2d 815, cert. denied, 114 N.M. 501, 841 P.2d 549.

Section inapplicable to postdated checks. — Where neither evidence nor inference contradicts testimony that a check was postdated, defendant's motion to dismiss the charge as to the check should be sustained as the Worthless Check Act does not apply to postdated checks. State v. Downing, 1971-NMCA-122, 83 N.M. 62, 488 P.2d 112.

False pretenses. — Giving a worthless check constitutes a representation that the drawer has credit with the drawee bank for the amount involved, and such representation relates to an existing fact, so that under former law a prosecution for obtaining money by false pretenses could be maintained. State v. Tanner, 1917-NMSC-017, 22 N.M. 493, 164 P. 821.

Finding of intent to defraud was supported by evidence where defendant cashed a $20.00 check on a bank in which he had no account, the next day cashed a $75.00 check on another bank with which he had just opened an account and made a $25.00 deposit, and on the following morning before leaving town without checking out of motel cashed a $35.00 check on that bank. State v. McKay, 1969-NMCA-009, 79 N.M. 797, 450 P.2d 435.

Intent lacking. — To issue a check in payment of an outstanding account, where credit was not given on the strength of check so issued, was not a violation of the statute, because there was no intent to defraud which is the gist of the offense. State v. Davis, 1921-NMSC-003, 26 N.M. 523, 194 P. 882.

Sufficient bank credit. — Conviction for issuance of a fraudulent check was reversed upon evidence showing an arrangement with the bank whereby defendant was to deposit drafts drawn on various commission houses, and the bank was to honor checks drawn by defendant, and that at the time the check was presented, defendant's credit with the bank was sufficient, according to the bank's own records, to cover it. State v. Thompson, 1933-NMSC-021, 37 N.M. 229, 20 P.2d 1030.

Compulsion as defense. — Where defendant claimed that an individual who was "bigger and tougher" than he forced him to write and cash a bad check under threat of bodily harm, and that this person was present in the store when he cashed the check, but store employees testified that defendant came into the store alone, defense of compulsion failed. State v. Lee, 1967-NMCA-017, 78 N.M. 421, 432 P.2d 265.

Knowledge of motel clerk. — Whether motel clerk knew, had been expressly notified or had reason to believe that defendant did not have sufficient funds on deposit in the bank to insure payment on presentation of the check was for the jury to decide. State v. McKay, 1969-NMCA-009, 79 N.M. 797, 450 P.2d 435.

Information sufficient. — Where information charged defendant with issuing worthless checks contrary to this section and 30-36-5B NMSA 1978, reference to the latter section was surplusage, since the information was sufficient without reference to the penalty. State v. Ferris, 1969-NMCA-093, 80 N.M. 663, 459 P.2d 462.

Malicious prosecution action not maintainable. — One charged with having issued a fraudulent check or draft cannot maintain a malicious prosecution action where he has obtained dismissal of charge by voluntarily paying the claim and costs of prosecution. Marchbanks v. Young, 1943-NMSC-024, 47 N.M. 213, 139 P.2d 594.

Court inquiry into defendant's consideration of bankruptcy might constitute reversible error. — In a trial for issuing worthless checks, the court's inquiry into defendant's consideration of bankruptcy might well have detracted from the presumption of innocence to which defendant was entitled, and constituted reversible error, because his answers may have tainted the opinion of the jury in deciding whether or not defendant's disavowals of intent to deceive or knowledge of insufficient funds should be believed in view of his past history as a debtor. State v. Caputo, 1980-NMCA-032, 94 N.M. 190, 608 P.2d 166.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 32 Am. Jur. 2d False Pretenses § 65 et seq.

False pretense or confidence game through means of worthless check or draft, 35 A.L.R. 344, 174 A.L.R. 173.

Criminal liability of corporate officer who issues worthless check in corporate name, 68 A.L.R.2d 1269.

Reasonable expectation of payment as affecting offense under "worthless check" statutes, 9 A.L.R.3d 719.

Constitutionality of "bad check" statute, 16 A.L.R.4th 631.

35 C.J.S. False Pretenses § 21.