Appeal from the Circuit Court of the Nineteenth Judicial
Circuit of Lake County; the Hon. ALVIN IRA SINGER, Judge,
presiding. Judgment reversed.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.
This is an appeal from a judgment entered on the verdict of the jury, finding the defendant, Lewis Billingsley, guilty of deceptive practices under section 17-1(d) of the Criminal Code (Ill Rev Stats 1963, c 38, par 17-1(d)). The defendant was sentenced to six months at the Illinois State Farm at Vandalia and fined $500.
The charge was based upon a check signed by the defendant and given to William Bicket on November 4, 1964. The check was in the sum of $3,445.58, the amount of the defendant's delinquent telephone bill. Bicket held this check and, on the same day, issued his check to the telephone company in payment of the bill, which had to be paid on this date to prevent defendant's telephone services from being disconnected.
In May of 1964, the defendant met Bicket, who was president of Bicket Enterprises, Inc., comprised of four retail stores, one being a drug store in which he operated a currency exchange. Bicket was acquainted with Mrs. Friend, a business associate of the defendant and had, in essence, extended credit to defendant and Mrs. Friend in a series of twelve or more transactions between May and November in 1964. On these occasions, they represented to Bicket that they needed immediate cash for various purposes. Bicket would then give them his check, which was good, for the sum requested, and take their check in return, which would supposedly be good in the near future. By September 28, 1965, defendant and his associate owed Bicket $17,500 to $24,000 in that apparently a number of their checks had been returned N.S.F.
The defendant testified that he told Bicket that he didn't have the money to pay his telephone bill, but would have the money in a few days; that this conversation took place on the day before he gave Bicket the check in question; that Bicket then stated that he handled telephone bills at the currency exchange and the telephone company would take his check; that defendant then arranged to give Bicket his check, in the amount of the telephone bill, to hold until it could be made good; and that Bicket agreed to issue his own check in payment of the defendant's bill. According to the defendant, his check was to be held as a note, similar to their prior transactions.
The testimony of Bicket was not as clear or precise as that of the defendant relative to the time of the various conversations and their substance, but a fair inference therefrom is that he was not aware that the defendant did not have funds in the bank to cover his check until after he received the defendant's check, and the telephone company had notified him that it was not good. However, he was aware of this fact prior to submitting his check to the telephone company in payment of the defendant's bill.
Bicket also testified that he never tried to cash defendant's check; and that he took cash, or checks made payable to the telephone company, and not to himself, in payment of other persons telephone bills. Bicket's transaction was unique in regard to the handling of defendant's telephone bill, and he did the same thing again in the latter part of November 1964, in payment of another of defendant's telephone bills in the sum of approximately $3,800. When called in rebuttal by the State, Bicket was not asked to clarify his testimony as to when he was made aware of the fact that there were not sufficient funds in the bank to cover defendant's check.
The defendant's principal contention is that section 17-1(d) of the Criminal Code, which provides that:
"A person commits a deceptive practice when: With intent to obtain control over property or to pay for property, labor or services of another, he issues or delivers a check or other order upon a real or fictitious depository for the payment of money, knowing that it will not be paid by the depository. Failure to have sufficient funds or credit with the depository when the check or other order is issued or delivered is prima facie evidence that the offender knows that it will not be paid by the depository;" (Ill Rev Stats 1963, c 38, par 17-1(d)),
is a codification of the law as it existed at the time of the enactment of the Criminal Code. He contends that in order for a criminal offense to occur, a person must issue a check to another, among other things, "with an intent to defraud"; and that the complaint against him was fatally defective in failing to allege that he intended to defraud Bicket in issuing his check and obtaining over $3,445.58 of Bicket's money. The defendant further contends that the jury was grossly misled by the instructions which contained no reference to the various elements of the offense charged, including the intent to defraud.
The statute quoted above makes no reference to an "intent to defraud." It requires only that a person, with an intent to obtain control over property, issue or deliver a check for the payment of money knowing that it will not be paid by the depository. If taken literally, this could be read to mean that a person has committed a criminal offense, who, when issuing his check in return for funds advanced to him, knows that his depository cannot then honor it, and so advises the person to whom the check is issued, and asks him to take and hold it until a specified future date, at which time the check will be good. The statute, so construed, would thus convert the use of a check as a "note," or the creation of a debtor-creditor relationship in such manner, into a criminal offense. Interpreted thusly, the statute would impose absolute liability.
Section 4-9 of the Criminal Code provides:
"A person may be guilty of an offense without having, as to each element thereof, one of the mental states described in Sections 4-4 through 4-7 if the offense is a misdemeanor which is not punishable by incarceration or by a fine exceeding $500, or the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described." (Ill Rev Stats 1963, c 38, par 4-9.)
The deceptive practice charged in the complaint carries a possible incarceration of up to one year. Thus section 17-1(d) of the Criminal Code does not come under the first clause of Section 4-9 of the Code. If section 17-1(d) is to create absolute liability, it must be that "the statute defining the offense clearly indicates a legislative purpose to ...