Appeal from the Circuit Court of Cook County; the Hon. PAUL
O'MALLEY, Judge, presiding. Judgment reversed.
MR. PRESIDING JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT.
On August 18, 1967, a complaint was filed charging the defendant, Leslie Baddeley, with theft of an automobile. The defendant pleaded not guilty, was tried by a Magistrate without a jury, found guilty and admitted to six months' probation.
The defendant is engaged in the occupation of repairing automobiles. In the first week of July, 1967, the complaining witness, Joseph D. Chasan, brought his 1952 Austin Sedan automobile to Lake Forest Motors, defendant's place of business, to have said automobile repaired by the defendant. Thereafter, defendant performed the necessary repair work upon the automobile (adjust valves and replace leaking engine head gasket). On July 28, 1967, after the vehicle was repaired, Mr. Chasan picked it up at the garage and gave the defendant a check for $25 in partial payment, informing the defendant he would pay the balance due when he (Chasan) returned from his vacation. The defendant agreed to this arrangement and Mr. Chasan drove the automobile home.
Chasan operated the automobile approximately three days, then the vehicle "broke down" and would not run. Because of this breakdown, Chasan called his bank and ordered them to stop payment of the $25 check he gave to the defendant. Chasan left the vehicle parked in the driveway next to his home and subsequently, on August 5, 1967, left town on a two-week vacation. (There is conflict in the testimony of the complaining witness and the defendant at this point: Chasan claims he did not speak with defendant concerning this second breakdown prior to going on his vacation. Defendant claims Chasan called him and complained about the second breakdown and defendant said he would take care of it.)
While Chasan was away, the defendant and one of his employees went to Chasan's home and towed the 1952 Austin automobile out of the driveway and back to defendant's shop. Defendant left a note in Chasan's mailbox notifying Chasan that the automobile was taken to the shop and was to be fixed once again. Several days after the automobile was in defendant's possession defendant learned that the check he received from Chasan had been stopped for payment. Nevertheless, defendant made additional repairs upon the vehicle. Upon Chasan's return from his vacation, he discovered his automobile was missing and found a note in his mailbox divulging its whereabouts. Chasan thereupon called the Northbrook police and informed them of the missing automobile. The next day, August 17, 1967, Chasan telephoned defendant and asked defendant to return the automobile, but defendant replied that he would return the automobile when Chasan paid the repair bill. Chasan stated he made an effort to get his automobile but made no effort to pay the repair bill because the automobile was taken from his property without his permission. On August 18, 1967, a complaint was filed charging the defendant with theft of an automobile, pursuant to section 16-1 of the Criminal Code. (Ill Rev Stats 1965, c 38, § 16-1.) The result of the bench trial was a finding of guilty of the offense as charged.
It is defendant's theory that, as a lien holder, he had the right to the possession of the automobile while his charges for the repairs of the automobile remained unpaid, and since he did not intend to permanently deprive Chasan of the automobile, there was no evidence to justify a finding of guilt against him. Defendant maintains that this appeal involves two separate and independent areas of law. The salient provisions of each are as follows:
Sections 16-1 and 15-3 of the Criminal Code of 1961 (Ill Rev Stats 1965, c 38, §§ 16-1, 15-3) provide:
"16-1 . . . A person commits theft when he knowingly:
"(a) Obtains or exerts unauthorized control over property of the owner; . . . and
"(1) Intends to deprive the owner permanently of the use or benefit of the property; . . .
"15-3 . . . To `permanently deprive' means to:
"(c) Retain the property with intent to restore it to the owner only if the owner purchases or leases it back, or pays a reward or other compensation for its return; . . ."
The Liens Act of 1921 (Ill Rev Stats 1965, c 82, § 40) provides:
". . . Be it enacted by the People of the State of Illinois, represented in the General Assembly: Every person, firm or corporation who has expended labor, skill or materials upon any chattel, or has furnished storage for said chattel, at the request of its owner, reputed owner, or authorized agent of the owner, or lawful possessor thereof, shall have a lien upon such chattel beginning on the date of the commencement of such expenditure of labor, skill and materials or of such storage for the contract price for all such expenditure of labor, skill or materials, or for all such storage, or in the absence of such contract price, for the reasonable worth of such expenditure of labor, skill and materials, or of such storage, for a period of one year from and after the ...