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COMMONWEALTH PENNSYLVANIA v. MARVIN MUTNIK (10/01/79)

decided: October 1, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
MARVIN MUTNIK, APPELLANT



No. 774 January Term, 1977, Appeal from the Order of the Superior Court of Pennsylvania at No. 584 October Term, 1977 Affirming the Judgment of Sentence entered December 7, 1976 by the Court of Common Pleas, Criminal Division, of Luzerne County, at No. 2169 of 1975.

COUNSEL

Charles P. Gelso, Moses & Gelso, Wilkes-Barre, Luzerne County, for appellant.

Thomas J. Glenn, Jr., J. P. Giovannini, Asst. Dist. Attys., Luzerne County, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Manderino, J., filed a dissenting opinion.

Author: Nix

[ 486 Pa. Page 429]

OPINION

Appellant Marvin Mutnik was convicted under 18 Pa.C.S.A. § 4105 (1973) of the charge of passing a "bad check" in the amount of $3,269.44 drawn on the corporate account of the M & M Construction Company, of which he is an officer. The check was made payable to Thomas Roper as part payment of an existing past-due account owed by the company to Roper. Appellant admitted at trial that he had issued the check, that he had been informed by Roper that it had been returned for insufficient funds, and that he never made a deposit to cover the check after receiving notice that it had not been honored by the bank. The Superior Court affirmed per curiam without opinion, although Judge Hoffman wrote a dissenting statement. Commonwealth v. Mutnik, 249 Pa. Super. 603, 377 A.2d 988 (1977). We granted allocatur and now affirm the judgment of sentence.

The two issues presented for our review are whether section 4105 requires a showing of intent to defraud, and if it does not, is article I, section 16 of our State Constitution violated. Section 4105 provides:

[ 486 Pa. Page 430]

§ 4105. Bad checks

(a) Offense defined. -- A person commits an offense if he issues or passes a check or similar sight order for the payment of money, knowing that it will not be honored by the drawee.

(b) Presumption. -- For the purposes of this section as well as in any prosecution for theft committed by means of a bad check, an issuer is presumed to know that the check or order (other than a ...


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