Appeal from the Appellate Court for the Fourth District; heard
in that court on appeal from the Circuit Court of McLean County,
the Hon. Wayne C. Townley, Jr., Judge, presiding.
MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:
On November 15, 1979, a McLean County jury convicted Olubukola A. Ogunsola of deceptive practices under $150. (Ill. Rev. Stat. 1979, ch. 38, par. 17-1(B)(d).) The appellate court affirmed the conviction. (91 Ill. App.3d 26.) On appeal, defendant contends that his conviction should be reversed because the trial court erroneously gave the jury an instruction that incorrectly defined the offense of deceptive practices, in that it omitted an essential element of that offense.
Testimony at the trial showed that on February 27, 1979, the defendant, a Nigerian exchange student, brought his 1972 Volkswagen Beetle to Mitch's Import Auto Center in Normal to have the brakes adjusted and the shock absorbers replaced. When defendant returned the next day to pick up his car, Fred Mitchell, the owner, presented him with a $286.80 repair bill. The record is unclear as to whether defendant questioned the amount of the bill at the time, or whether Mitchell told him that he could not have his car until it was paid. Defendant gave Mitchell his check for the full amount of the bill.
Kim Ketchum, who was called as a witness on behalf of the People and who was bookkeeping supervisor of the Prairie State Bank on February 28, 1979, the date of the defendant's check for the repairs to his auto, gave somewhat imprecise testimony concerning the status of the balance in defendant's checking account at the time defendant wrote and delivered his check to Fred Mitchell for the repairs to his car. We need not try to sort out these facts because defendant conceded in his appellate court brief that when he wrote the check for $286.80, the full amount of the bill, he knew he had insufficient funds in his bank to honor the check and that at that time he intended to stop payment on the check.
Kenneth Winn, a local mechanic, testified for the defendant that a reasonable charge for the parts and work done on defendant's car was about $147. Defendant did not testify.
The trial court gave the jury the following instruction:
"To sustain the charge of deceptive practices under $150, the State must prove the following propositions:
First: that the defendant, with intent to pay for the labor and property of Fred Mitchell, delivered a check upon a bank; and
Second: that the defendant knew the check would not be paid.
If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.
If, on the other hand, you find from your consideration that any of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty."
This instruction is a modified form of Illinois Pattern Jury Instruction, Criminal, No. 13.24, Issues in Deceptive Practices (1968). Defendant asserts that the instruction incorrectly states the law because it omits any reference to the intent to ...