ACCOUNT WITH INSUFFICIENT FUNDS.
SINCE THE ANSWER TO YOUR FIRST QUESTION IS IN THE NEGATIVE, IT APPEARS THAT A RESPONSE TO YOUR SECOND QUESTION IS NOT REQUIRED, AS YOU ONLY REQUESTED AN ANSWER IF THE FIRST QUESTION WAS IN THE AFFIRMATIVE. HOWEVER, CASE LAW DOES SPECIFICALLY STATE THAT A DISTRICT ATTORNEY CANNOT BRING A PROSECUTION FOR FAILURE TO MAKE PAYMENT FOR SERVICES RENDERED. IN EX PARTE WHEELER, 7 OKL.CR. 562, 124 P. 764 (1912), THE COURT OF CRIMINAL APPEALS ADDRESSED THE ISSUE OF PROSECUTION FOR FAILURE TO PAY A DEBT FOR SERVICES. THE COURT STATED THAT THE "CRIMINAL LAWS OF OKLAHOMA CANNOT BE USED FOR THE COLLECTION OF DEBTS CREATED FOR ANY KIND OF PROFESSIONAL OR PERSONAL SERVICES". WHEELER, 124 P. AT 764. THEREFORE, IT APPEARS THAT THE LAW IS CLEAR THAT A PROSECUTION CANNOT BE BROUGHT FOR A DEBT FOR SERVICES AS WELL AS FOR A DEBT FOR GOODS.
YOUR THIRD QUESTION ASKS WHETHER THERE IS ANY OTHER STATUTE WHICH CAN BE USED TO PROSECUTE FOR FAILURE TO PAY ON AN OPEN ACCOUNT CREATED FOR EITHER GOODS OR SERVICES. IN WHEELER, SUPRA, THE STATE CONCEDED THAT THERE WAS NO STATUTE UNDER WHICH THE PROSECUTION COULD BE MAINTAINED AND THE COURT OF CRIMINAL APPEALS AGREED. IN HIXSON V. STATE, 598 P.2D 268 (OKL.CR.1979), THE DEFENDANT WAS CHARGED WITH OBTAINING MONEY BY FALSE PRETENSES. THE COURT OF CRIMINAL APPEALS FOUND THAT THE DEFENDANT PROMISED TO DELIVER PHOTOGRAPHS WITHIN A CERTAIN AMOUNT OF TIME IN EXCHANGE FOR THE BUYER'S MONEY. THE PHOTOGRAPH'S WERE NOT DELIVERED IN TIME ALTHOUGH SOME BUT NOT ALL OF THE MONEY HAD BEEN PAID. THE COURT STATED THAT THERE WAS NO EVIDENCE OF INTENT TO DEFRAUD AND A PROSECUTION UNDER THE FALSE PRETENSES STATUTE COULD NOT STAND. THE COURT CONCLUDED THAT ANY BREACH OF THE OBLIGATION INCURRED MUST BE REMEDIED BY A CIVIL SUIT. HIXSON, 598 P.2D AT 269. AFTER A READING OF THE CASE LAW, THE STATUTES AT ISSUE HEREIN AND THE OKLAHOMA CONSTITUTION, IT APPEARS THAT THERE IS NO LAWFUL MEANS BY WHICH A DISTRICT ATTORNEY MAY PROSECUTE FOR A FALSE OR BOGUS CHECK GIVEN IN PAYMENT OF AN OPEN ACCOUNT CREATED FOR GOODS OR SERVICES.
(DIANE L. SLAYTON)