State v. Bontz

• Decision Date: 02 November 1963
• Docket Number: No. 43504,43504
• Citation: 386 P.2d 201,192 Kan. 158
• Parties: The STATE of Kansas, Appellee, v. Antoine BONTZ, Appellant.
• Court: Kansas Supreme Court

Page 201

386 P.2d 201

192 Kan. 158

The STATE of Kansas, Appellee, v. Antoine BONTZ, Appellant.

No. 43504.

Supreme Court of Kansas.

Nov. 2, 1963.

Syllabus by the Court

1. We adhere to the rules of law as set out in State v. Breitenbach, 190 Kan. 189, 373 P.2d 601, that in construing G.S.1949, 21-556, a discharge in bankruptcy may not be pleaded by an offender under the 'worthless check' statute as payment of the check in a proceeding to abate the criminal action and obtain his discharge.

2. A discharge in bankruptcy relieves the bankrupt from legal liability to pay a debt that was provable and is a valid defense in an action brought in a state court to recover the debt, but it does not free the bankrupt from all traces of the debt as though it had never been incurred.

3. The right of a defendant to abate a criminal action under G.S.1949, 21-556, is permissive and a privilege given to the offender which he may or may not exercise. If exercised, it must be done in the manner prescribed by statute.

4. The provisions of section 21-556 of the 'worthless check' act are not invalid under the Supremacy Clause of the federal Constitution as conflicting with the federal Bankruptcy Act.

Ralph R. Brock, Wichita, argued the cause, and Lester L. Morris, Verne M. Laing, Ferd E. Evans, Jr., Joseph W. Kennedy and C. Robert Bell, Jr., Wichita, were with him on the briefs, for appellant.

Owen J. Ballinger, Deputy County Atty., argued the cause, and William M. Ferguson, Atty. Gen., Keith Sanborn, County Atty., and William J. Tomlinson, Deputy County Atty., were with him on the briefs, for appellee.

WERTZ, Justice.

The defendant (appellant) was convicted in the court below of issuing a worthless check in an amount in excess of $50 in violation of G.S.1949, 21-554, and was sentenced to imprisonment in the Kansas State Penitentiary.

Pursuant to G.S.1949, 21-554, which provides that it shall be unlawful for any person to draw, make, utter, issue or deliver to another any check on any bank or depository for the payment of money or its equivalent, knowing, at the time of the making, drawing, uttering or delivery of the check he had no funds on deposit in or credits with such bank with which to pay the draft upon presentation, complaint was filed on July 26, 1961, in the court of common pleas of Sedgwick county charging defendant with giving a worthless check to James Ray Distributing Co. in the amount of $1,232.91 drawn upon the East Side State Bank of Wichita.

Prior to the preliminary hearing defendant filed a voluntary petition in bankruptcy in the United States District Court for the District of Kansas. The insufficient fund check given by defendant, which constituted the basis of the complaint, was listed as one of defendant's scheduled debts in the bankruptcy proceedings. The proceedings on the worthless check complaint were stayed until defendant's final discharge in bankruptcy on February 5, 1962.

On April 27 a preliminary hearing was had and defendant was bound over to the district court for trial. An information was filed in the latter court charging the defendant with the issuance of the worthless check as hereinbefore related.

Prior to the trial on the information in the district court defendant filed an application to abate the action pursuant to G.S.1949, 21-556, which provides, in substance, that in any case where a prosecution is begun under the provisions of the 'worthless check' act, the defendant shall have the right, upon application made before trial, to have the action abated by showing to the court that he had an account in the bank upon which the check or draft was drawn thirty days next prior to the time the check was delivered, and that the check was not drawn upon the bank with the intent to defraud the party receiving it, and if the court shall so find, the action shall be abated and the defendant discharged upon paying into court the amount of such check and the costs in said case.

At the hearing on his application to abate defendant introduced a certified copy of his discharge in bankruptcy entered on February 5, 1962, and other evidence. The trial court found that at the time the check was given defendant had an account in the bank on which the check was drawn within thirty days next prior to giving the check and that defendant did not have the intent to defraud the payee at the time the check was issued. The court also found the defendant was not in a position to abate the check by paying the amount of the check and costs, and further found that under the authority of State v. Breitenbach, 190 Kan. 189, 373 P.2d 601, defendant's discharge in bankruptcy was not grounds for abatement of the action and overruled defendant's motion to abate.

Subsequent thereto defendant waived his right to trial by jury and the case was tried to the court. The court found the defendant guilty and under the provisions of G.S.1949, 21-555, sentenced him for the offense charged in the information. From an order overruling defendant's motion for new trial and his plea in abatement defendant has appealed.

The two questions presented on this appeal are (1) whether a discharge in bankruptcy may be pleaded by an offender under the 'worthless check' statute (21-554) as payment of the check in a proceeding authorized by section 21-556 and thereby secure an abatement of a criminal action and obtain his discharge, and (2) if a discharge in bankruptcy of the liability on the check does not constitute an abatement under section 21-556 of the 'worthless check' act, then is the act in conflict with section 17 of the Bankruptcy Act and the Supremacy Clause of the Constitution of the United States.

The defendant is fully aware of our recent case of State v. Breitenbach, 190 Kan. 189, 373 P.2d 601, which overruled our previous decision in In re Myers, 119 Kan. 270, 237 P. 1026; however, he asks us to re-examine the Breitenbach decision and reinstate the rule in In re Myers. We will not restate the facts in the Breitenbach case, but it may be said that they are practically identical with the facts in the instant case, especially insofar as they affect the rules of law therein enunciated.

In the Breitenbach case we stated we had no quarrel with the holding that a discharge in bankruptcy is the equivalent of payment of the civil liabilities of all the bankrupt's provable debts (11 U.S.C.A. § 35; G.S.1949, 60-3601, 60-3602) and further stated:

'The right to abate a criminal action afforded an offender under 21-556 is a right which he may or may not invoke. It is a privilege given by law to permit such an offender to correct an innocent mistake in issuing an insufficient fund check (State v. Morris, 190 Kan. 93, 372 P.2d 282). If the right is invcked, the offender must being himself clearly within the terms of the statute, that is, he must show to the satisfaction of the court or judge that he has complied with the three statutory requirements: first, that he had an account in the bank 30 days next prior to the giving of the check;...