Interim Decision #1379
MATTER of Beim
In DEPORTATION Proceedings
A-8801025
Deaidedby Board August 5,1964
A. conviction for drawing a check with insufficient funds in violation of section
21-554, Kansas General Statutes (1949), is not a conviction of a crime involving
moral turpitude_
CHARGE:
Order: Act of 1952—Section 241(a) (4) IS U.S.C. 1251(a) (4) (1958)3—Convicted a two crimes involving moral turpitude after entu—Selling
mortgaged property, violation of check law.
This is an appeal from the order of the special inquiry officer finding
respondent deportable upon the ground stated above.
Respondent, a 35-year-old divorced male, a native of Ireland and
citizen of Great Britain, was admitted to the United States for permanent residence on December 14, 1954. On March 7, 1961, he was
convicted of the crime of selling mortgaged property, and on. February 27, 1961, he was convicted of the crime of drawing a check with
insufficient funds in violation of Kan. Gen. Stat. 1949, ch. 21, sec. 554.
The issue before us is whether the check conviction involves moral
turpitude.
The pertinent sections of the Kansas Statutes follow :
It shall be unlawful for any person, corporation, or partnership, to draw, make,
utter, issue or deliver to another any check or draft 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 any such check or draft as aforesaid that he
has no funds on deposit in or credits with such bank or depository with which
to pay such check or draft upon presentation. (G.S. 1949, 21-554)
That in any ease where a prosecution is begun under this net the defendant
shall have a right, upon application made for that purpose before trial, to have
said action abated by showing to the court or judge that he has had an account
in said bank upon which cheek or draft was drawn, thirty days next prior to
the time said check or draft was delivered and that said check or draft was
drawn upon said bank without intent to defraud the party receiving the same,
and if the court shall so ilnd, said action shall be abated and the defendant shall
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Interim Decision 44379
be discharged upon paying into the court the amount of such check and the costs
in said case. (G.S. 1249,21-558)
The special inquiry officer found that moral turpitude was involved
because Matter of M—, 9 L & N. Dec. 743, required him to so find.
Counsel contends that it is well settled that intent to defraud is not
an element of the offense of passing a worthless check. The Service
representative holds that intent to defraud is an element. Both rely
upon State v. Mortis, 372 P. 94 282 (1962). We find the crime does
not involve moral turpitude.
Matter of M—, supra, involved a worthless check conviction in the
Virgin Islands under a law which did not expressly make 'intent to defraud an element of the crime; however, the Board found that such an
intent was an element from the fact that conviction could be obtained
only upon proof of knowledge on the part of the maker that he lacked
funds in the bank to pay the check. The language of the opinion is
broad and will require a re-examination when this section is again
before us; however it is not controlling here since the question as to
whether intent to defraud is an element of the crime before us has been
passed upon by the courts of the jurisdiction involved.
Before we examine the decisional law of Kansas concerning the sections before us, it would be well to consider generally the issue of
moral turpitude as it relates to a worthless check conviction. Moral
turpitude is found when the intent to defraud is a necessary element
of the crime. When conviction for the drawing of a worthless check
is possible without proof of an intent to do evil, moral turpitude is
not present because the conviction is possible even though the drawer
may have intended to pay the check: one who draws a check knowing
he 'has no funds to pay it but who expects to pay it, may be misguided,
overly optimistic, and unsound in his judgment but he need. not act
with intent to cheat, and it is in the intent that moral turpitude lies.
It may be, that in many worthless check cases, an intent to defraud is
actually present; however, if the statute does not require that such
an intent be established, moral turpitude is not involved in the
conviction—it is the moral obliquity of a crime and not of the individual which is the test; if the crime as defined does not inherently
involve moral turpitude, then, no matter how immoral the conduct
which is the basis for the conviction, the crime does not involve moral
turpitude (Matter of Ifirmey, Lit. Dec. No. 1343) .
We may now consider G.S. 1949, 21-555. The cases unanimously
hold that an intent to defraud is not an element of the crime defined
by G.S. 1949,21-555. The crime is committed when a check is wilfully drawn with knowledge at the time that there are no funds on
deposit to meet it. No proof need be made that payment was not in
tended or that there was an intent to deprive a person of his property
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(see State v. Avery, 207 P. 838 (1922) ). Despite the unanimity of
the cases, G.S. 1919,21-556 providing for abatement of an action, if
the drawer of a worthless check establishes that "intent to defraud"
was not an element, appears to raise a question as to whether fraud is
not an element of the crime. The apparent inconsistency between the
court cases and the language of 21 556 disappears when it is realized
-
that the term "intent to defraud" as used in the section, is a term of
art which refers not to proof of an intent to cheat, but to mere proof
that a check was drawn with knowledge of the nonexistence of funds
to pay it.
The two sections are discussed in State v. Morris, supra, cited by
both counsel and the Service representative in support of their respective positions; for this reason, and because it is one of the latest
expressions of the court on the matter we shall set forth in detail the
court's statement.
(3] State v. Avery, 111 Ran. 588, 589, 207 P. 838,
23 A.L.R. 458, in the landmark case which construed and applied the statutes under which the defendant
was convicted. It was there held that an intent to defraud was not an element
of the offense and was not essential to the validity of the statute (G.S. 1949, 21-
554). Whatever the state of mind of the defendant may be technically called,
he must have knowledge that he cannot meet the check when presented for
payment and he must act willfully. In the opinion it was said:
"… The worthless check must be willfully drawn, knowing at the time
there are no funds on deposit to meet it. Beyond that, the legislature may, for
protection of the public interest, require persons to act at their peril, and may
punish the doing of a forbidden act without regard to the knowledge, intention,
motive, or moral turpitude of the doer. * "
"… The purpose of the statute was to discourage overdrafts and resulting
bad banking (Saylors v. [ State] Bank,
99 Kan. 515, 518,
163 P. 454) to stop
the practice of 'clieekkiting,' and generally to avert the mischief to trade, commerce and banking which the circulation of worthless checks inflicts. Although
the statute tends to suppress fraud committed by the worthless - check method,
the evils referred to are all quite distinct from those consequent on fraud, and
the statute is to be regarded as creating a new and distinct offense. …"
(111 Kan. Lc. 590, 591,
207 P. 1.c. 839).
… •*
In State v. Gillen, 151 Kan. 359,
99 P. 2d 832, the defendant there made the
argument that if intent to defraud was an element of the abatement statute
(G.S. 1949, 21-556), then it must be an element of the insufficient funds statute
(G.S. 1949, 21-554), since, he argued, "that if intent is an element in one instance
It is in another." This court disposed of the contention by saying :
"… The question of whether intent was to be an element was for the legislature. We are satisfied the Avery ease correctly disposes of the matter of intent
as an element of the crime of which appellant was charged and convicted."
(
151 Kan. 1. c. 363,
99 P. 2d 1. c. 835.)
[5] The purpose of the legislature in passing the abatement statute (21-556)
was to give a right to any person who made an innocent mistake in issuing a
check which is dishonored upon presentation by reason of insufficient funds with
which to pay it, to correct his mistake and thus avoid any record of a criminal
prosecution. Whatever contradiction there may be between the insufficient fund
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check statute (21-554) and the abatement statute (21-556), we think it apparent
from the Avery and Gillen decisions that the so-called intent to defraud was ,
construed to be present whenever money, property or other thing of value was
parted with by the person to whom the check was given, anti that it is incumbent
upon the defendant to negate that intent by showing that he had no intention
to willfully issue the check, knowing at the time he had no funds on deposit
in the bank to pay it upon presentation.
Since it is clear that an intent to defraud, that is, an intent to cheat
or deprive a person of his property, is not an element of the crime for
which respondent was convicted, moral turpitude is not involved
in his conviction. The record does not establish respondent has been
twice convicted for two crimes involving moral turpitude; the appeal
must be sustained.
ORDER: It is ordered that the appeal be and the same is hereby
sustained and that the proceedings be terminated.
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