A-7203906
Decided by Board March 12, 1951
Crime involving moral turpitude — Drawing check without credit (1940, Ohio) — Fraudulent check (1948, Indiana).
(1) An offense under section 710-176 of the Ohio General Code (entitled, "Drawing a Check Without Credit") involves moral turpitude, since intent to defraud is an essential thereof.
(2) An offense under section 10-2105 of the Indiana statutes (entitled "Fraudulent Checks") involves moral turpitude, since intent to defraud is an essential thereof.
CHARGE:
Warrant: Act of 917 — Sentenced more than once, to wit: Issuing check against insufficient funds and issuing check without funds.
BEFORE THE BOARD
Discussion: This case is before us on appeal from a decision of the Assistant Commissioner dated September 19, 1950, directing respondent's deportation on the above charge.
Respondent is a 51-year-old native of Yugoslavia (formerly Austria), probably now stateless, who last entered the United States in 1910 or 1911. He has resided in this country continuously since that time.
Respondent is married to a native-born United States citizen who is living in Vincennes, Ind., with their four citizen children. Respondent's testimony reveals that he deserted from the United States Army in 1916 and has never obtained any subsequent discharge from service.
The record shows that respondent has been convicted twice for violations of so-called "cold check" statutes. On March 29, 1940, respondent was charged by indictment with an offense under section 710-176 of the Ohio General Code (entitled, "Drawing a Check Without Credit") in the Court of Common Pleas, Hamilton County, Ohio. He was sentenced to 1 to 3 years on May 4, 1940; he was confined to the Ohio State Prison until August 3, 1942.
On February 7, 1948, respondent was charged with violating section 10-2105 of the Indiana statutes (entitled, "Fraudulent Checks") and he pleaded guilty in Wayne County Circuit Court, Indiana. In April 1948, respondent was sentenced to 1 to 10 years, serving nearly a year at Indiana State Prison.
Ohio and Indiana, like several other states, have "cold check" statutes which are similarly worded, having been copied from the same model. The statutes in question read as follows:
Parallel statutes exist in the following jurisdictions:
Kentucky: Baldwin's Rev. Statutes, 1942, sec. 434.070; Commonwealth v. Bandy, 291 Ky. 721, 165 S.W. (2d) 337; King v. Commonwealth, 203 Ky. 163, 261 S.W. 1096 (1924); Commonwealth v. Hammock, 198 Ky. 785, 250 S.W. 85 (1923).
Massachusetts: General Laws, 1933, ch. 266, sec. 37; Fuller v. Home Indemnity Co., 318 Mass. 37, 60 N.E. (2d) 1 (1945).
Michigan: Annotated Statutes, 1935, sec. 28.326, 28.327, 28.328; People v. Smith, 271 Mich. 553, 260 N.W. 911 (1935).
New York: McKinney's Consolidated Laws, 1944, sec. 1292a; People v. Weiss, 263 N.Y. 537 (1933); People v. Olans, 264 N.Y. 420 (1934).
West Virginia: Annotated Code, 1949, sec. 5980; State v. McGinnis, 116 W. Va. 473, 181 S.E. 820 (1935).
Section 710-176 (Page's Ohio General Code, 1937):
Drawing check, draft, etc., without credit; penalty. — Any person, who, with intent to defraud, shall make or draw or utter or deliver any check, draft, or order for the payment of money upon any bank or other depository, who, at the time thereof, has insufficient funds or credit with such bank or depository, shall be guilty of a felony, and upon conviction thereof shall be fined not less than fifty dollars and not more than two hundred dollars, or imprisoned in the Ohio State Penitentiary for not less than one year nor more than three years or both.
Prima facie evidence of intent to defraud. — As against the maker or drawer thereof, the making, drawing, uttering, or delivering of a check, draft or order, payment of which is refused by the drawee, shall be prima facie evidence of intent to defraud, and knowledge of insufficient funds in, or credit with, such bank or other depository. The word "credit" as used herein shall be construed to mean any contract or agreement with the bank or depository for the payment of such check, draft, or order, when presented.
Section 10-2105 (Burns' Indiana Statutes, 1933):
Fraudulent checks — Act of 1927. — Whoever with intent to defraud by obtaining money, merchandise, property, credit, or thing of value, although no express representation is made in reference thereto, or who, in the payment of any obligation, shall make, draw, utter or deliver any check, draft, or order for the payment of money upon any bank, depository, person, firm, or corporation, knowing at the time of such making, drawing, uttering, or delivering that the maker or drawer has not sufficient funds in or credit with such bank, despository, person, firm, or corporation, for the payment of such check, draft, or order in full upon its presentation, shall, on conviction, be imprisoned in the State prison for not less than one (1) nor more than ten (10) years: Provided, however, That when the money, merchandise, property, or thing of value obtained is less than twenty-five dollars ($25.00), the punishment shall be the same as the punishment prescribed by law for petit larceny. The making, drawing, uttering, or delivering of such check or draft or order as aforesaid shall be prima facie evidence of intent to defraud. The word "credit" as used herein shall be construed to mean an arrangement or understanding with the bank, depository, firm, or corporation, for the payment of such check, draft, or order (acts 1927, ch. 201, sec. 6, p. 576).
The offense defined in the "cold check" statutes belongs in general to the family of criminal false pretenses and is a species of fraud by false pretenses. Huffman v. State, 205 Ind. 75, 185 N.E. 131 (1933); Hughes v. Commonwealth, 232 Ky. 232, 22 S.W. (2d) 618 (1929). The gist of the offense in both statutes lies in the fraudulent intent and knowledge. Union Gas Electric Co. v. Coffman, 36 Ohio Law Rept. 201, 1931; Koenig v. State, 121 Ohio State Rept. 147 (1929); State v. Vice, 33 Ohio opinions 544 (1946).
The statute creates a rebuttable statutory presumption of guilt, based on prima facie evidence of intent to defraud. However, proof of intent to defraud, according to judicial construction, is an essential of the crime and a conviction for this offense. People v. Will, 289 N.Y. 413, 46 N.E. (2d) 498 (1943); People v. Ledwell, 14 N.Y.S. (2d) 371 (1939); Union Gas Electric Co. v. Coffman, ( supra.)
Therefore, since the gravamen of the offense has repeatedly been held to be the intent to defraud and moral turpitude inheres in such criminal intent, we conclude that convictions under section 710-176, Ohio General Code, and section 10-2105, Indiana statutes, were both convictions for crimes involving moral turpitude. People v. Will ( supra); Seaboard Oil Co. v. Cunningham, 51 F. (2d) 321 (C.C.A. 5, 1931). The charge under section 19, act of 1917, of having been sentenced more than once to imprisonment for periods of 1 year or more as a result of convictions for crimes involving moral turpitude after entry, is accordingly sustained.
Anderson v. Bryson, 94 Fla. 1165, 115 So. 505 (1929); State v. McGinnis, 116 W. Va. 473, 181 S.E. 820 (1935); Caldwell v. Commonwealth, 221 Ky. 232, 298 S.W. 681 (1927).
U.S. ex rel. Mongiovi v. Karnuth, 30 F. (2d) 825 (W.D.N.Y. 1929); U.S. ex rel. Meyer v. Day, 54 F. (2d) 336 (C.C.A. 2, 1931); U.S. ex rel. Shladzien v. Warden, 45 F. (2d) 204 (E.D. Pa., 1930).
When the warrant hearing was held in the present case on April 27, 1950, respondent was confined to the Indiana State Farm, Green-castle, Ind., serving a sentence for another "cold check" violation which occurred, according to respondent's testimony in Vanderburgh County, Evansville, Ind., and for which he received a 6-month sentence plus a fine of $25 and court costs.
Respondent was released to Nashville, Tenn., police authorities on April 30, 1950, for prosecution there for similar offenses in connection with his passing three worthless checks, totaling $800, in 1949.
In passing, we wish to comment on the applicability to the instant case of U.S. ex rel. Portada v. Day, 16 F. (2d) 328, S.D.N.Y. (1926), cited by the hearing examiner in his recommended decision. The Portada case is not controlling here, for the California "cold check" statute in issue at that time differed materially from the Ohio and Indiana statutes now under consideration. Since the word "wilfully" was specifically used in the California statute, there was no room for judicial interpretation regarding the necessity of an intent to defraud as an element of the crime; a fraudulent intent was an indispensable element of the crime, according to the plain wording of the statute. On the other hand, the word "wilfully" is conspicuously missing from the Ohio and Indiana statutes now before us, leaving the courts free to determine judicially, as they have done, that an intent to defraud is an essential element of the crime.
For these reasons, the appeal is dismissed.
Order: It is hereby ordered that the appeal be dismissed.