#### PEOPLE *v.*BEAUDOIN.

1. Criminad Law — Checks—Insufficient Eunds — Intent to Defraud.

The statute which prohibits the drawing of insufficient funds checks contains the language “with intent to defraud,” and intent to defraud is an element of the crime of drawing a check not having sufficient funds to pay it (CL 1948, § 750.131, as amended by PA 1962, No 65).

2. Same — Intent to Defraud — Evidence.

Record which contains no proof of defendant’s intent to defraud, *held,*not to establish that the crime of drawing and uttering an insufficient funds check was committed (CL 1948, § 750.131, as amended by PA 1962, No 65).

3. District and Prosecuting Attorneys — Insufficient Proofs.

Prosecuting attorney, upon recognition of the laek of proof of intent to defraud at the close of proofs in a prosecution for drawing and uttering an insufficient funds cheek, should either move to reopen proofs to correct the deficiency or move to *nolle prosequi,*depending on available proof (CL 1948, § 750.131, as amended by PA 1962, No 65).

4. Same — Lack of Evidence — Confession of Error.

Prosecuting attorney, upon recognizing laek of proof of intent to defraud in transcript of trial for uttering insufficient funds eheek, had an obligation to confess error and request the appellate eourt to correct it rather than ignoring the error by not participating in defendant’s appeal (CL 1948, § 750.131, as amended by PA 1962, No 65).

References for Points in Headnotes

[1] 32 Am Jur, Lareeny §§ 29, 30, 36-42.

Reasonable expectation of payment as affecting offense under “worthless cheek” statutes. 9 ALR3d 719.

'2, 4] 32 Am Jur, Larceny § 127.

'3] 21 Am Jur 2d, Criminal Law §§ 512-519.

;5,6] 5,3 Am Jur, .Trial §§ 113.1, .1142.

*4625. Trial — Criminal—Nonjury Cases- — Judge—Findings op Fact.

Trial judge is required to make findings of faet in eases tried by a judge without a jury, criminal as well as civil (GCR 1963, 517.1, 785.1 [1]).

6. Same — Findings op Fact — Nonjury Cases.

It is reasonable to assume that the trial judge would have recognized the deficiency in proof of intent to defraud in a prosecution for uttering an insufficient funds check, had he complied with the eourt rule by making findings of faet in a nonjury trial (CL 1918, § 750.131, as amended by PA 1962, No 65; GCR 1963, 517.1, 785.1 [1]).

Appeal from St. Clair; Streeter (Halford I.), J.

Submitted Division 2 May 3, 1967, at Lansing.

(Docket No. 1,855.)

Decided July 20, 1967.

Thomas Beaudoin was convicted of uttering an insufficient funds check. Defendant appeals.

Reversed.

*Frank J. Kelley,*Attorney General, *Robert A. Derengo ski,*Solicitor General, *James T. C orden,*Prosecuting Attorney, and *John G. Cummings,*Assistant Prosecuting Attorney, for the people.

*Thomas Beaudoin, in propria persona.*

Quinn, J.

November 9, 1965, defendant was tried before the circuit judge without a jury and found guilty of violating CL 1948, § 750.131, as amended by PA 1962, No 65 (Stat Ann 1965 Cum Supp § 28.326).1 He appeals *in propria persona*
      *463and poses as one question for review, “Was a crime committed?” In view of the record which contains the answer to this question, we find the simplicity of the question refreshing and treat it as an accurate statement of the controlling issue, namely: does the record establish that a crime was committed?

The statute contains' the language “with intent to defraud,” and since the record contains no proof of such intent, the answer to this question is in the negative. Such answer requires reversal and obviates .discussion of the .other issues raised.

Normally, we would end here but the fact that the deficiency of required proof is so evident that the defendant *in propria persona*recognized it and raised the question for review and the fact the prosecuting attorney filed no brief in the case leads to only one conclusion, namely: the prosecuting attorney recognized the same deficiency. While we feel the prosecuting attorney should have recognized the lack of proof of intent to defraud at the close of proofs and either moved to reopen proofs to correct the deficiency or moved to *nolle*prosequi, depending oil available proof, we are not prepared to say such recognition occurred before the transcript of the trial was examined. Then, however, the prosecuting attorney had an obligation to confess the error and request this Court to correct it rather than ignoring it by not participating in this appeal.

*464In cases tried by a judge without a jury, GCR 1963, 517.1 requires the judge to make findings of fact. This rule applies to criminal as well as civil trials. GCR 1963, 785.1(1). If the trial judge had complied with GCR 1963, 517.1 instead of merely pronouncing defendant guilty as charged, it seems reasonable to assume he would have recognized the deficiency in proof that requires this reversal.

Reversed.

Lesinski, C. J., and Gilmore, J., concurred.

Any person who, with intent to defraud, shall make or draw or utter or deliver any check, draft or order for the'payment of money, to apply on account or otherwise, upon any bank or other depository, knowing at the time of such making, drawing, uttering or delivering, that the maker, or drawer, has not sufficient funds in or credit with such bank or other depository, for the payment of such cheek, draft, or order, in full, upon its presentation, or any person who, with the intent to defraud, shall make, draw, utter or deliver any check, draft or order for the payment of money to apply on account or otherwise, *463upon any bank or other depository and who shall not have sufficient funds for the payment for same when presentation for payment is made to the drawee, exeept where such laek of funds is due to garnishment, attachment, levy, or other lawful cause, and such fact was not known to the person who made, drew, uttered or delivered the instrument at the time of so doing, shall, if the amount payable in the check exceeds $50, be guilty of a felony, punishable by imprisonment in the county jail not more than 1 year or by a fine of not more than $500,