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DONNA FRANCIS HENDERSON v. STATE OF MISSISSIPPI

NOVEMBER 23, 1988

DONNA FRANCIS HENDERSON
v.
STATE OF MISSISSIPPI



BEFORE HAWKINS, P.J., ROBERTSON AND SULLIVAN, JJ.

HAWKINS, PRESIDING JUSTICE, FOR THE COURT:

This is an appeal by Donna Henderson of her conviction in the circuit court of Pearl River County for obtaining money under false pretenses by writing a bad check, in violation of Miss. Code Ann. 97-19-55 (1984). Because the only representation, if any, made by Henderson as to the check was that when it would be presented over three weeks later for cashing there would be sufficient funds to honor it, this constituted no criminal offense.

We, therefore, reverse and render, discharging the appellant.

 FACTS

 On October 4, 1985, the defendant, Mrs. Henderson, met with James D. Webb about renting a residence in Pearl River County, as well as purchasing the property. She and her husband Don Henderson lived in Carriere. Henderson was employed on an offshore oil well drilling operation.

 Mrs. Henderson paid Webb $500 in cash for the first month's rent, and wrote him a check for $3,000.00, dated October 4, drawn on the Hancock Bank, Picayune branch. On that day she started moving their household furniture into the house.

 On October 14, 1985, Webb and his wife Mrs. Jean Webb, and the Hendersons executed a Lease Contract and Option whereby the Webbs leased the residence in Pearl River County for a period of 12 months at $500 per month rent, payable in advance beginning October 4, 1985. The lease obligated the

 Hendersons, among other things, to keep the premises in good repair, and maintain fire and extended insurance, and be responsible for all damages.

 The contract also contained an option whereby, for the sum of $3,000, the lessors granted the lessees Hendersons a 12-month option to purchase the property for $79,500, payable by a $7,950 down payment, the balance payable in monthly installments over a 15-year period, with 12% per annum, and secured by a deed of trust on the property leased and which would be conveyed. If the lessees desired to examine the title, they were free to do so at their expense, and if defects could not be cured, the lessors/optionors would refund the $3,000 with no interest. The option had to be exercised on or before October 4, 1986. The option further provided that if lessees failed to exercise the option, the $3,000 would be retained by the Webbs. Finally, the contract contained the following paragraph:

 It is mutually understood and agreed that if the Lessees shall fail or refuse to make the payment on the rental on said property as herein provided, when and as the same become due and payable, or if Lessees shall fail to pay the sum of $3,000 due under the Option hereto on or before October 28. 1985, or if the Lessees shall fail to comply with any other agreement and provision in this Contract and Option; then this Lease and Option shall terminate and end and the Lessees agree to surrender possession of the said leased premises back to the Lessors, without the necessity of any legal notice, or legal proceeding to obtain possession of said property and all funds paid to Lessors shall be retained as liquidated damages. [Emphasis added]

 The $3,000 check delivered to Webb on October 4 represented the $3,000 consideration for the option in the contract.

 On October 28, Webb took the check to the depository bank, but could not cash it because the Hendersons did not have sufficient funds on deposit. In fact, at no time during the month of October was there on deposit sufficient funds to honor this check. The Hendersons continued to pay their monthly rental through 1985, but efforts by Webb to collect the $3,000 were unsuccessful.

 Webb made efforts through the justice court to collect the money, and wrote a letter which he mailed by certified mail, threatening Mrs. ...


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