*1 these, deluding circumstances such as Court Under was the product statement holding appellant’s itself unconstrained will. I dissent. of a free and
Charles &Moses Luzerne County, for appellant. Glenn, Jr., Giovannini,
Thomas J. J. P. Asst. Dist. Attys., Luzerne County, for appellee. EAGEN, J., O’BRIEN, ROBERTS, NIX,
Before C. LARSEN, MANDERINO and JJ.
OPINION NIX, Justice. Marvin
Appellant Mutnik was convicted under 18 Pa.C. (1973) a charge S.A. “bad check” in $3,269.44 the amount of drawn on the corporate account of the M & M he Company, Construction of which is an officer. The check was payable Roper made to Thomas as part of an payment past-due account owed existing by the com- trial pany Roper. admitted at that he Appellant had check, issued that he had been by Roper informed that it funds, had been returned for insufficient and that he never a deposit made to cover the check receiving after notice that it by had been honored bank. The Court affirmed per although curiam without opinion, Judge Hoff- man wrote a statement. Commonwealth v. Mut- nik, Pa.Super. A.2d 988 We granted allocatur and now the judgment affirm of sentence.
The two issues for our are presented review whether defraud, 4105 requires showing section a of intent to and if not, it does section article 16 of our Constitution State violated. Section 4105 provides: 4105. Bad checks commits offense
(a) Offense defined. —A order for the passes sight he issues or a check similar by that will not be honored knowing it payment money, the drawee. this
(b) Presumption. purposes —For by means well as in theft committed any prosecution check, know presumed an issuer order) check or (other post-dated check or order than not be paid, would if: drawee at the
(1) the issuer had no account with the issued; check was time the or order was refused the drawee lack of funds, issue, within after presentation days good days the issuer to make within ten failed refusal. notice of that receiving section is a misde- (c) Grading. offense —An *3 the degree the if the amount of check or meanor of second $200; summary it offense. order exceeds otherwise re- important aspect in one This statute differs 872, 854, 24, 1939, P.L. the Act of June pealed predecessor, amended, 4854 expressly 18 4854.1 Former section P.S. § stated, part: prior in relevant statute and drafts 4854. Worthless checks defraud, makes, draws, Whoever, with utters or delivers intent to money, upon check, draft, any any payment the or order for bank, institution, depository, banking company, other trust or making, uttering, knowing, drawing, or at the such deliver- time of in, ing, that the or drawer has not sufficient funds or credit maker with, institution, bank, company, banking or trust other such check, although express depository, such no the shall, thereto, upon summary representation is made in reference check, thereof, or conviction amount of such draft order does the pay ($200) a fine two be sentenced not exceed hundred dollars undergo ($300), or to more hundred dollars of not than three both, months, imprisonment (3) than three or or if the for not more check, order two hundred dollars amount of such draft or exceeds misdemeanor, ($200), guilty of a and then such thereof, exceeding not two conviction shall be ($1,000), years, exceeding one dollars or or fined thousand both. section, making, drawing, any prosecution the In check, draft, order, payment uttering of which of a
431 one required an intent to defraud as of the essential ele- crime, Horton, ments of the see v. Commonwealth 213, 217, In the 348 A.2d Crimes redrafting the legislature deliberately Code the omitted re- of an intent to as a constituent element quirement defraud the issuing crime of a bad check. Prior to this case the Court had not had an the occasion to new statute. Two courts bf com interpret however, pleas, mon had the and con interpreted cluded that the element of intent to be read defraud must into the statute pass courts enable the act Willet, scrutiny. Commonwealth v. Pa.D. (Monroe 1976); Ulsh, &C.2d 368 v. County, Commonwealth (Cumberland Contra, County, 1974). Pa.D.&C.2d Keown, Commonwealth (Bucks 6 Pa.D.&C.3d 720 County, 1978); see also Petition of Osteopathic Hosp., Allentown 1974) (wherein Pa.D.&C.2d 790 (Lehigh court County, reached the conclusion that the new statute had eliminated “an intent to but reach defraud” did not the constitutional In question). analyzed Keown the court Willet Ulsh opinions and came conclusionsthat the had legislature fact decided to remove the element of intent to defraud from the crime that without such an element statute, nevertheless, was constitutional.
We agree the ruling in Keown that:
it is of some significance omitted the intent to specific defraud from the definition of the bad check crime in the Crimes Clearly Code. understood of these words significance because in the same very which the bad check chapter *4 is the charge found saw fit to an include by credit, is refused drawee the because of lack of funds or shall be prima knowledge facie evidence of intent defraud and of to of in, with, bank, institution, banking insufficient or such funds credit company, depository, trust or other unless such or maker drawer togeth- thereon, paid shall have the drawee thereof the amount due protest fees, (10) days er with ten interest within after receiv- ing check, draft, paid notice that such or order has not been drawee. Appendix, 18 Pa.C.S.A. see forgery, defraud as an element of C.P.S.A. to of simulating objects of the crime § [Pa.C.S.A.] the and in antiquity, see 18 C.P.S.A. § [Pa.C.S.A.] destruction, of record- removal concealment fraudulent instruments, 4103. See see 18 C.P.S.A. able [Pa.C.S.A.] defining tampering also C.P.S.A. [Pa.C.S.A.] believe, therefore, We with records or identification. de- the element of intent to specific the omission of by intended charge from the bad check the fraud there are insuffi- a check for which to denominate passing as of the issuer a crime knowledge cient funds with the passes at of whether consideration regardless present of of the check not. passing time the 723. 6 Pa.D.&C.3d at
Moreover, prior only act permitted we are to consider are not explicit. when the words of statute When, here, are clear and free “the words of it is be all the letter of not to possible ambiguity, pursuing pretext spirit.” disregarded hold 1921(b) (1979 Pamphlet). We therefore Pa.C.S.A. § to require does not the Commonwealth that section 4105 part an defraud on the of the defendant.2 intent to prove unless contends that an intent defraud Appellant checks, element the crime of then section im proscription against 4105 contravenes our constitutional I, section 16 of our constitution for debt. Article prisonment a.debtor, strong where there “The provides: fraud, prison not be continued presumption shall of his creditors in his estate for benefit up both Although manner as shall be law.” prescribed such Judge argued that In his statement Hoffman a construc- requiring 4105 not an intent to defraud would tion ‘.‘invite justice system litigants already criminal use the overtaxed essentially disputes.” It is our view that resolve what were contract perversion paper flow is more a mere of commercial than Furthermore, Judge private dispute. Hoffman’s observation contract question legislature, policy is at best a it does reflect police power. parameters of the *5 433 contention,3 the Ulsh cases with agree appellant’s and Willet we section 4105 believe that is constitutional even without a requirement of to defraud.
Article
16
been interpreted by
section
has
our
rarely
clear, nonetheless,
courts.
It is
that “[ijmprisonment
civil debt is abhorrent
of
law
this Commonwealth.”
Petition,
271,
Young’s
267,
192 A.
(1937).
911
The
1776, 1790,
constitutions of
1838
all had provisions
equivalent
section,
to
and legislative implemen-
tation of
provisions
these
has followed.
e.
of
g.
July
See
Act
12, 1842,
339,
1,
amended,
P.L.
12
257
P.S. §
JARA,
27,
(repealed by
1980);
effective June
Act
Febru-
of
28, 1787,
396, 2
ary
P.L.
Laws of
Smith
1781-
Pennsylvania
Petition,
1790.4
generally,
283,
See
119 Pa.Super.
Miller’s
291,
(1935).
The
very language
precludes
section 16
its applicability
debtor,
the present case:
appellant, although
being
prison
“continued
up his estate for'
the benefit of his creditors.” The few cases that have
interpreted this
have concluded that
it seeks to
prevent
arrest,
continuing imprisonment,
civil
of a
debtor who has surrendered his assets for the
heavily upon
3. The court in Ulsh relied
several old cases from other
example,
jurisdictions.
n.2, discussing,
See 68
127 &
Pa.D.&C.2d at
Commonwealth,
410,
Ky.
(Ky.
rnam
v.
228
15
256
S.W.2d
Bu
1929);
Meeks,
State,
(Ariz.1926);
State v.
247 P.
172
1099
Duncan v.
186,
(Ga.1931). Despite
continuing
Ga.
We of sentence. judgment therefore affirm the MANDERINO, J., opinion. dissenting filed a MANDERINO, Justice, dissenting. Hoffman, Judge
I I agree dissent. not a does Court, that construction of 4105 which defraud, use the invites require litigants civil to collect debts. justice system criminal being opinion appellant The states that majority intentionally disrupt- but “for imprisoned being debtor ing undermining flow of and the soundness commer- paper guise cial this Commonwealth.” Under this one, similar civil default could be converted into a every criminal that the accused is not by stating being offense “being impris- civil default but rather is oned for the flow of and undermin- intentionally disrupting the soundness of ing [something] in this Commonwealth”— undermining (trespass actions) support agreements deeds actions), (defamation (nonsupport newspapers actions), traf- fic flow (negligence actions), (breach written any contract actions). actions, contract In all civil it can be said that someone intentionally the flow of disrupted something and undermined the soundness What something. sacred about checks they special protection deserve in the private world of commerce?
Moreover, majority starts out with the opinion propo- sition that proven it was not that the defendant had an to defraud —the opinion up by ends that concluding the defendant had an intent to disrupt and undermine something. Where is the evidence toas the intent to disrupt It as lacking undermine? in the record as the intent to defraud.
I completely disagree with the majority’s interpretation I, Article majority opinion you cannot says be imprisoned for debt only you show voluntarily up at the courthouse and hand your over assets. That is not the of Article meaning law, In the civil there is an entire system in existence reaching the assets of debtors execution, including judgment, levy, A and sale. citizen must deliver creditors, his assets for the benefit of under the provision, such manner as pre shall he scribed law. This he means must not nor assign conceal assets from process of judgment, levy, execution, and sale. Even in the case concealment the assignment assets to a third there must be party strong presumption of fraud. Petition, 267, 192 See In Re Young’s A. The burden is not on the citizen prove he showed at up deposited the courthouse and his assets in the establish prosecution The burden on
courtroom.
doubt,
concealment
fraud,
a reasonable
beyond
of the law.
processes
from the established
assets
takes
from a conclusion that
I
dissent
respectfully
must
prisons.
bringing
back debtors’
dangerous step
CITY OF
Frey, Jr., Appellees. Pennsylvania. Supreme Court of 17, 1979. Argued April 1, 1979. Decided Oct.