Appeals, Nos. 266 and 267, Oct. T., 1962, from judgment of Court of Quarter Sessions of Philadelphia County, Sept. T., 1960, Nos. 1735 and 1736, in case of Commonwealth of Pennsylvania v. Jack Kelinson, also known as Barry Kelinson. Judgment arrested.
Stanley L. Kubacki, for appellant.
Burton Satzberg, Assistant District Attorney, with him Arthur J. Marion and Arlen Specter, Assistant District Attorneys, Paul M. Chalfin, First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for Commonwealth, appellee.
Before Rhodes, P.j., Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (ervin, J., absent).
[ 199 Pa. Super. Page 137]
This is an appeal by Jack Kelinson, the defendant-appellant, from the judgment of sentence of the Court of Quarter Sessions of Philadelphia County, after conviction before Judge WEINROTT, of the court below, sitting without a jury, on bills of indictment charging Jack Kelinson, also known as Barry Kelinson, with violation of the worthless check act and cheating by false pretenses; and from an order denying motions in arrest of judgment and for a new trial. After denial of his post trial motions he was sentenced to make restitution to the private prosecutor in the amount of $4153.44, and to undergo imprisonment on each indictment for not less than three months nor more than twenty-three and one-half months in the county prison; sentences to run concurrently.
The defendant Jack Kelinson was president of the now defunct Barkel Meat Packing Co., Inc., and with his wife, owned 51% of the stock of the corporation. The defendant's son, Barry Kelinson, was secretary-treasurer of this company, and owned 49% of the stock. Barkel Meat Packing Co., Inc. was engaged in the
[ 199 Pa. Super. Page 138]
wholesale meat business. For several months Barkel was doing business in the purchase of meat with McKenney Meat Co. of Lexington, Kentucky. On February 2, 1960, a shipment of meat was delivered to Barkel by Yeary Transfer Co., Inc. The driver of the delivery van was a man named Casey. The terms of the transaction, as clearly enunciated on the delivery ticket was "check on delivery". The shipment was accepted by Barry Kelinson, on behalf of Barkel on February 2 and the defendant testified that he could not remember but may have been present. Barry initialed the shipping order and prepared and signed a corporation check dated February 4, 1960, which he delivered to Casey.
The Commonwealth bases it case upon the issuance of the check in the amount of $8453.44, which was returned for want of sufficient funds and has never been paid. Because of the nature of its business every check drawn by Barkel to this supplier was post-dated. The instant check was the only one not paid.
The Act of 1939, June 24, P.L. 872, § 854, 18 PS § 4854, known as the "Worthless Check Act", provides, inter alia: "Whoever, with intent to defraud, makes, draws, utters or delivers any check, draft, or order for the payment of money, upon any bank, banking institution, trust company, or order depository, 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, banking institution, trust company, or other depository, for the payment of such check, although no express representation is made in reference thereto, is guilty ...