State v. Ringi, s. 57810

• Decision Date: 17 January 1986
• Docket Number: Nos. 57810,58271,s. 57810
• Citation: 712 P.2d 1223,238 Kan. 523
• Parties: STATE of Kansas, Appellant, v. Peter RINGI, a/k/a Peter Ring, a/k/a Peter J. Pelligrino, Appellee.
• Court: Kansas Supreme Court

Page 1223

712 P.2d 1223

238 Kan. 523

STATE of Kansas, Appellant, v. Peter RINGI, a/k/a Peter Ring, a/k/a Peter J. Pelligrino, Appellee.

Nos. 57810, 58271.

Supreme Court of Kansas.

Jan. 17, 1986.

Supreme Court of Kansas

1. Under K.S.A.1984 Supp. 21-3707, it is not necessary for the worthless check or draft to be used to obtain possession of money, merchandise or anything of value in order to constitute the crime of passing a worthless check.

2. The charge of theft by deception under K.S.A. 21-3701(b) is a separate crime from giving a worthless check under K.S.A. 21-3707. A defendant may be charged with both offenses where they occur on different days.

Geary N. Gorup, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Clark V. Owens, Dist. Atty., were with him on the brief for appellant.

Charles A. O'Hara, of O'Hara, O'Hara & Tousley, Wichita, argued the cause and was on the brief for appellee.

PRAGER, Justice:

This is a consolidated appeal of two criminal cases which arose following the deposit of an allegedly worthless check by the defendant, Peter Ringi, in a Wichita bank. For purposes of this appeal, the facts are undisputed and are essentially as follows: On the 24th day of January, 1984, defendant Ringi went to Eastside Bank and Trust in Wichita and deposited a check drawn on the Ringi Investment Account in the United American Bank of Memphis, Tennessee. The check, which was in the amount of $5,000, was deposited in Ringi's business account at Eastside Bank and Trust. The evidence at the preliminary hearing showed that at the time the check was deposited the actual balance in the Memphis bank was well under $5,000.

On the next day, January 25, 1984, the defendant went back to Eastside Bank and Trust and obtained a cashier's check in the amount of $7,000 from that bank based in part upon the deposit made the previous day. Then the Memphis bank check bounced. The funds in defendant's account at Eastside Bank and Trust were insufficient to pay the cashier's check issued on January 25, 1984.

On August 30, 1984, criminal Case No. 84 CR 1420 was filed in Sedgwick County charging defendant with giving a worthless check in violation of K.S.A.1984 Supp. 21-3707. On November 8, 1984, a preliminary hearing was held. Defendant was bound over for trial on the charge of giving a worthless check. A jury trial was scheduled for January 7, 1985. Prior to the trial date, the assistant district attorney and the defense counsel discussed the possibility that the defendant had not been properly charged, because he had not received anything of value from the bank at the time the Memphis bank check was deposited. A hearing was held before the Honorable Paul W. Clark on defendant's motion to dismiss the charge. The basic legal argument made to Judge Clark was that on January 24, 1984, at the time the check was deposited defendant did not receive anything of value because the defendant did not receive the cashier's check until the next day, January 25, 1984. Defendant contended that defendant should have been charged with theft by deception under K.S.A.1984 Supp. 21-3701(b) and not on a worthless check charge. The court accepted the argument of the defendant and dismissed the worthless check charge. On January 8, 1985, the State filed a new complaint/information in Case No. 85 CR 30, charging the defendant Ringi with theft by deception contrary to K.S.A.1984 Supp. 21-3701(b). On January 31, 1985, a preliminary hearing was held before the Honorable Montie Deer on the charge of theft by deception and defendant was bound over for jury trial.

On February 4, 1985, the State filed an appeal to the appellate courts from the order of the district court dismissing the worthless check charge in Case No. 84 CR 1420. Defendant then filed a motion to dismiss Case No. 85 CR 30 on the basis that the district court lacked jurisdiction over the case because of the appeal filed by the State in Case No. 84 CR 1420. On May 1, 1985, the Honorable James Beasley dismissed 85 CR 30 on the basis that the court lacked jurisdiction in view of the appeal in the prior case. The State then appealed the dismissal of Case No. 85 CR 30 and the two pending appeals were consolidated and transferred to the Supreme Court for hearing.

We will first consider the appeal in Case No. 84 CR 1420. The basic issue presented in that appeal is whether the district court erred in dismissing that case in which defendant was charged with giving a worthless check under K.S.A. 21-3707 on the basis that the defendant did not receive something of value for the check at the time defendant issued and delivered the check for deposit to Eastside Bank and Trust of Wichita. The worthless check statute (K.S.A.1984 Supp. 21-3707) provides as follows:

"21-3707. Giving a worthless check. (1) Giving a worthless check is the making, drawing issuing or delivering or causing or directing the making, drawing, issuing or delivering of any check, order or draft on any bank, credit union, savings and loan association or depository for the payment of money or its equivalent with intent to defraud and knowing, at the time of the making, drawing, issuing or delivering of such check, order or draft, that the maker or drawer has no deposit in or credits with the drawee or has not sufficient funds in, or credits with, the drawee for the payment of such check, order or draft in full upon its presentation.

"(2) In any prosecution against the maker or drawer of a check, order or draft payment, of which has been refused by the drawee on account of insufficient funds, the making, drawing, issuing or delivering of such check shall be prima facie evidence of intent to defraud and of knowledge of insufficient funds in, or on deposit with, the drawee unless the maker or drawer pays the holder thereof the amount due thereon and a service charge not exceeding $3 for each check, within seven days after notice has been given to the maker or drawer that such check, draft or order has not been paid by the drawee. As used in this section, 'notice' includes oral or written notice to the person entitled thereto. Written notice shall be presumed to have been given when deposited as restricted matter in the United States mail, addressed to the person to be given notice at such person's address as it appears on such check, draft or order.

"(3) It shall be a defense to a prosecution under this section that the check, draft or order upon which such prosecution is based:

"(a) Was postdated, or

"(b) was given to a payee who had knowledge or had been informed, when the payee accepted such check, draft or order, that the maker did not have sufficient funds in the hands of the drawee to pay such check, draft or order upon presentation.

"(4) Giving a worthless check is a class E felony if the check, draft or order is drawn for $150 or more. Giving a worthless check is a class A misdemeanor if the check, draft or order is drawn for less than $150."

The predecessor to K.S.A.1984 Supp. 21-3707, which was G.S.1915, § 3471, was construed by this court in State v. Avery, 111 Kan. 588, 207 Pac. 838 (1922). In Avery, the defendant contended that the offense of giving a worthless check is related to the false token and false pretense group of crimes, and, consequently, in order to constitute a crime, the check must be given with intent to defraud, and fraud must be accomplished by procuring money or other valuable thing. This court rejected that contention, holding that the purpose of the statute was to discourage overdrafts and resulting bad banking, to stop the practice of check-kiting, and generally to avert the mischief to trade, commerce and banking which the circulation of worthless checks inflicts. The statute was to be regarded as creating a new and distinct offense, and, therefore, it was not necessary that fraud had been accomplished by procuring money or other valuable thing.

The worthless check statute was again before the court in Foor v. State, 196 Kan. 618, 413 P.2d 719 (1966). There the defendant entered a plea of guilty to issuing a $350 worthless check in violation of G.S.1949, 21-554. Subsequently, defendant filed a motion to vacate the judgment and his sentence on the basis that he was not guilty of issuing a worthless check because he had received no money or valuable thing at the time the check was issued. The defendant had issued a check to a car dealer for a down payment on an automobile. The defendant argued that although he issued the check he received no money. The automobile was never titled in his name nor a finance plan consummated, and the automobile was returned to the dealership when the defendant was arrested. This court rejected the argument of the defendant, holding that the worthless check statute is not concerned with whether or not the offender was able to keep his ill-gotten gains and that it is the uttering, issuing, or delivering of the check which constitutes the offense.

The statute in effect at the time the defendant deposited the Memphis bank check in this case on January 24, 1984, contained essentially the same language as the previous statutes. K.S.A. 21-3707 was amended effective May 17, 1984, but that amendment did not change the basic elements of the offense. The constitutionality of K.S.A. 21-3707 was upheld in State v. Haremza, 213 Kan. 201, 515 P.2d 1217 (1973). The statute was again before the court in State v. Powell, 220 Kan. 168, 551 P.2d 902 (1976). In Powell, it was held that the gravamen of the offense of giving a worthless check as proscribed by K.S.A. 21-3707 is the act of putting a negotiable check into circulation with knowledge that sufficient funds or credit are not on deposit to pay the amount specified in the instrument. The offense is complete when...