For affirmance -- Justices Jacobs, Sullivan, Pashman (concurring in result) and Clifford and Judge Conford. For reversal -- None. Pashman, J. (concurring in part and dissenting in part).
Defendant was convicted on two counts of overdrawing checking accounts, in violation of N.J.S.A. 2A:111-15. One of the counts was based on the delivery by defendant of a check in partial payment of a prior debt owed by a corporation in which he had an interest. The Appellate Division reversed the conviction on that count on the ground that, although there was ample evidence of the statutory requirement of knowledge by defendant that there were insufficient funds in his bank account to cover the check, there was no evidence of intent by defendant to defraud the payee of the check. 125 N.J. Super. 543 (1973). The Appellate Division relied on State v. Turetsky, 78 N.J. Super. 203 (App. Div. 1963). The court sustained the conviction on the other count. On cross-petitions for certification we granted that of the State and denied that of the defendant. 63 N.J. 499 (1973).
We affirm essentially for the reasons stated in the Appellate Division's opinion, and add the following comment.
This court has never heretofore dealt with the question whether fraudulent intent may be inferred by a
jury where a known worthless check is uttered solely as purported payment on account or in discharge of an antecedent debt, with no present benefit from payee to negotiator passing or contemplated. State v. Turetsky, supra, which relied on the prior decision of State v. Riccardo, 32 N.J. Super. 89 (App. Div. 1954), held in the negative on that proposition. We are asked by the State to overrule those decisions on the reasoning in cases like State v. Bradley, 190 Wash. 538, 69 P. 2d 819, 823 (Sup. Ct. 1937), that fraudulent intent is inferable in a past-consideration case on the theory that "the delivery of the check might maintain the drawer's credit for a limited period of time" or "lead the payee to believe that his claim had in fact been paid * * *." We decline to do so. As stated in Turetsky and Riccardo, both supra, fraudulent intent is inferable where the bad check is given to obtain an extension of credit or relief from threatened legal action although tendered as payment of an antecedent debt. 78 N.J. Super. at 213; 32 N.J. Super. at 94. But the evidence here does not permit any such finding. Considerations such as those mentioned in the Bradley case, supra, seem to us too insubstantial, standing alone, to justify a finding of the fraudulent intent required by the statute. They are inherent in almost any bad check transaction, and, if deemed sufficient for a conviction, would in effect write the fraudulent intent requisite out of the statute.
PASHMAN, J. (concurring in part and dissenting in part). I concur in the result reached by my colleagues. I agree because it is the correct conclusion under existing case law upon which the defendant could properly rely. This Court has never dealt with the specific question, and in the present evaluation of this issue, it now appears that the majority has chosen the road set out previously by the Appellate Division in State v. Riccardo, 32 N.J. Super. 89 (App. Div. 1954) and State v. Turetsky, 78 N.J. Super. 203 (App. Div. 1963).
While the distinction between present and past consideration is illogical and unnecessary, the majority has seen fit to further weave one into the fabric of our case law. I therefore dissent from the majority's rationale in a wholly prospective manner. This defendant, therefore, would still benefit from a more favorable jury charge than I am proposing or from a motion for judgment of acquittal. Prospective application of the law is appropriate under these facts and circumstances. See Justice Cardozo's opinion in Great Northern Railway Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 53 S. Ct. 145, 77 L. Ed. 360 (1932). In a more recent United States Supreme Court decision, Jenkins v. Delaware, 395 U.S. 213, 89 S. Ct. 1677, 23 L. Ed. 2 d 253 (1969), the majority opinion quoted Justice Francis when he said in State v. Vigliano, 50 N.J. 51 (1967):
The statutes dealing with intent to defraud through the passage of worthless checks are N.J.S.A. 2A:111-15 and 16. Any reader who could claim that he has discovered an intent on the part of the Legislature to treat present and past consideration differently has a vivid imagination. However, the majority has found one. N.J.S.A. 2A:111-16 clearly states that " prima facie evidence of intent to defraud" is established when the maker knowingly issues a check upon insufficient funds for the payment of money by any bank. These are the precise facts in this case; yet the Court is unwilling to recognize this evidence of intent.
Other jurisdictions with similar statutes have not set present and past indebtedness at variance ...