Burnam v. Commonwealth

• Decision Date: 12 March 1929
• Citation: 15 S.W.2d 256,228 Ky. 410
• Parties: BURNAM v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

15 S.W.2d 256

228 Ky. 410

BURNAM v. COMMONWEALTH.

Court of Appeals of Kentucky

March 12, 1929

Appeal from Circuit Court, Madison County.

Theo Burnam was convicted for making, uttering, and delivering a cold check, and he appeals. Reversed.

John Noland, of Richmond, for appellant.

J. W Cammack, Atty. Gen. (Douglas C. Vest, of Frankfort, of counsel), for the Commonwealth.

STANLEY C.

The appellant, Theo Burnam, was indicted on the charge of "making, uttering and delivering a cold check," committed by giving a check for $46.80 to one Wallace and thereby obtaining credit on a note then in his hands for collection. At the time the accused did not have any funds in the bank on which the check was drawn and did not satisfy it after having received notice of its nonpayment. A demurrer to the indictment was overruled. The defendant then entered a plea of guilty and was sentenced to serve one year in the penitentiary, from which judgment he appeals.

The demurrer should have been sustained. The indictment was wholly insufficient even under the law under which it was attempted to be drawn. But inasmuch as we have concluded that the act is unconstitutional, we need not discuss the indictment in those particulars.

The act (chapter 41, Acts of 1928, now section 1213a, Statutes, Supp 1928) is a debtcollecting law. To that end it undertakes to invoke criminal processes and to inflict penalties which in their severity may be on occasion disproportionate to the seriousness of the offense endeavored to be created and the evil sought to be cured. The essential and controlling difference between the act and other statutes of this kind including those of our own state enacted and repealed from time to time, is that the element of fraud or other criminal purpose is not an ingredient.

Guilt is established if "any person, who shall make, draw utter or deliver any check, draft or other order for the payment of money upon any bank or other depository, and shall thereby obtain thereon money, goods or credit on any account which he then owes, not having at the time of such making, drawing, uttering or delivery, sufficient funds in such bank or other depository for the payment of such check, draft or order in full upon its presentation." The same is true if one causes funds to be withdrawn from the bank without leaving sufficient on deposit to satisfy such paper. If it be for $20 or less, the maximum penalty is $100 fine and 30 days' imprisonment. For a second or subsequent similar offense the punishment is confinement of not less than one nor more than two years in the penitentiary. In case the amount involved exceeds $20, the penalty is not less than one nor more than five years in prison. In addition to prescribing the venue of the prosecution, it is provided that: "No indictment shall be made under the provisions of this act within ten days after the date of such check, draft or order." It is further provided that if the person who violates its terms "shall pay the same within ten days from the time he receives actual notice, written or verbal, of the dishonor of such check, draft or order, then any prosecution that may have been instituted within said time, shall, if payment be made on such check as aforesaid, be dismissed at defendant's cost." Finally, post-dated instruments are made ""subject to the provisions of this act and shall not escape the penalties hereof." And the concluding proviso is: "Nothing in this act shall apply to any person or persons under twenty-one years of age."

Howsoever innocently one may be acting, and whatsoever degree of good faith he may be exercising, he will nevertheless be guilty of a felony by drawing a check, draft, or order upon his bank without having sufficient funds to cover it; and the same is true as to innocently checking out funds on deposit after the instrument has been given. If the appellant had deposited to his own credit checks of others payable to himself and then had given the one on which he was indicted, and before it was cleared and had reached the bank on which it was drawn, the checks deposited by the defendant had been dishonored and charged back to his account, resulting in a deposit insufficient to meet the check, the effect under the statute would not have been otherwise. Bad faith or good faith, guilty intent or innocent purpose, the result is the same.

The giving of a check on an account or note, as in this case, merely changes the evidence and character of the debt. If not paid the creditor loses nothing. If this conviction should be sustained, when the appellant returned after a year's service in the penitentiary he would still owe $46.80 and one more year's interest on the note covered by his check.

These observations are particularly true as to a post-dated check, which is in effect but a representation on the part of the payor that on a future date he will have funds with which to satisfy it, and is only an obligation on his part to pay the sum involved on a future date. As a species of commercial paper, what is the material difference between such a check and a negotiable promissory note? It also may be put in circulation as a medium of exchange. Can it be seriously contended that failure to pay a note by reason of financial inability is a crime? The barbarous practice of imprisoning one for a mere debt-the obligation not being the result of wrongdoing-is a thing of the past.

The act makes no distinction between a check, draft, and an order drawn on a bank. A check is drawn on a deposit subject thereto. A draft usually differs from a check in that it ordinarily requires a definite acceptance by the drawee. An order is commonly understood to be merely an assignment of a debt or obligation with directions to the one owing the assignor to pay it to the assignee. Like a draft, it may be on an individual or on a banking institution. Under this act, if an individual should fail to honor a draft or to accept such an order, no offense would be committed; but if a banking institution should for any reason-no matter whether valid or invalid-decline to accept the assignment, an offense would be committed. The relation existing between a banker and a depositor is that of debtor and creditor (Robinson & Co. v. Bank of Pikeville, 146 Ky. 538, 142 S.W. 1065, 37 L. R. A. [N. S.] 1186) and a check is but a pro tanto assignment of the deposit.

This extended analysis of the act is given for the purpose of disclosing its nature and showing the moving object and efficient cause of the enactment to be the collection of debts and penalizing breaches of contracts by invoking the criminal courts and powers of the commonwealth instead of requiring the parties to resort to civil procedure. The soundness of this conclusion is made patent by the closing portion of the act which relieves those under 21 years of age of its provisions. Persons who are not old enough to be legally capable of entering into a binding contract and against whom civil actions would not avail, do not come within its purview. The logic of the deduction is emphasized by the fact that offenders are not punished for making, uttering, or delivering the checks, drafts, or orders, but only for not paying them after they have been dishonored. Prosecution shall not be commenced until there has been a failure to satisfy the debt thus evidenced after a notice which is equivalent to a demand. The debtor is given ten days' grace, and if he cannot raise the money in that time, he suffers prosecution.

Guilty intent ordinarily may be inferred from an act (8 R. C. L. 60), and if one gave a check knowing it would not be honored, a criminal purpose could be inferred. But in the absence from the statute of such condition, no such inference may be indulged. It is true the maxim (liberally rendered) that a crime is not committed if the mind of the person doing the unlawful act is innocent does not always apply to offenses created by statute, and consequently is not an essential element of a statutory crime. In the exercise of the police power, the Legislature often prohibits the performance of a specific act in which neither moral turpitude nor evil motive is material. Campbell v. Commonwealth, 229 Ky. 264, 17 S.W.2d 227, decided February 12th. Usually the purpose and design of the legislative action renders unnecessary a guilty knowledge, but often courts import or read into the statute a proviso that the inhibited act shall be done from a guilty mind, 8 R. C. L. 63. Since the statute under consideration is palpably designed merely to enforce the collection of debts, as we have determined, it would appear that guilty knowledge was intentionally omitted as a constituent part, and the court is not authorized to interpret the act as involving that element, or to import a guilty or criminal intent to the one offending its provisions or coming within its scope.

Statutes of this character are usually sustained because they require that fraudulent intent must appear. A guilty knowledge and purpose must be the gravamen of the offense. Our former valid statute on this subject provided that the giving of a dishonored check was prima facie evidence of fraud, and transferred the burden to the defendant to disprove that criminal element. The cases sustaining that and other similar acts do not militate in any way against the conclusion reached. The natural and inevitable effect of the statute is to expose to conviction for crime those who simply fail or refuse to liquidate a debt, and to coerce payment by imprisonment, or the infliction of a fine.

The act is a declaration by the commonwealth to one party to a contractual transaction, whereby he had incurred a debt to the other, that unless he pays that debt he shall be arrested, tried, convicted,...