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Descripción de editorial

The defendant in this case was charged with having, with intent to defraud, given a check to C. Hamlin Short, drawn upon a bank in which defendant knew he had no funds, an offense made a felony by Section 561.450, RSMo 1950, V.A.M.S. Defendant waived a jury and the case was tried to the court. Supreme Court Rule 26.01(b), V.A.M.R. At the Conclusion of all the evidence the court found the defendant guilty of violating Section 561.460, which makes it a misdemeanor to draw and deliver, with intent to defraud, a check upon a bank when the drawer knows he has insufficient funds in or credit with such bank for the payment of the check in full. The sentence imposed was a year in the county jail and a fine of $1,000. Defendant appealed to the Supreme Court, which on motion of the Attorney General transferred the appeal to this court, where appellate jurisdiction is vested. State v. Bradley, Mo.App., 247 S.W.2d 351, 353. After the appeal was transferred the Prosecuting Attorney did not enter his appearance or participate in the hearing, and we have not had the benefit of a brief from him. It is not necessary to relate the evidence since the defendant has not made any attack on that feature of the case. In fact, the sole and only point raised by the defendant on appeal is one of law. As succinctly stated in defendant's brief it is: ""* * * Can a defendant charged under Section 561.450 be found not guilty of that charge and under the information charging therewith be found guilty under Section 561.460? * * *"" In contending for a negative answer to the question he propounds defendant asserts that the verdict was erroneous, first, because it was not responsive to the charge made by the information and was not so sufficient, definite and certain as to constitute a bar to further prosecution for the same offense; and second, that the offense made a misdemeanor by Section 561.460 is not a lesser included offense to that under Section 561.450.

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