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People v. Bormet





Appeal from the Circuit Court of Cook County; the Hon. Martin E. McDonough, Judge, presiding.


Defendant Allen Bormet was found guilty of a deceptive practice (Ill. Rev. Stat. 1983, ch. 38, par. 17-1(B)(d)) for knowingly issuing a check without sufficient funds. Following a bench trial defendant was sentenced to a six-month term of conditional discharge and ordered to make restitution in the amount of $3,661.94. Defendant appeals, contending that: (1) he was not proved guilty beyond a reasonable doubt, (2) the trial court did not properly evaluate evidence that the check in question was in payment for previously delivered goods, (3) the complaint was fatally defective because it alleged the offense in the disjunctive.

We reverse.

At trial the complainant, Bernard Markel, owner of Consolidated Supply Company, testified that on August 4, 1983, defendant, president of A & B Plumbing Company, came to Markel's place of business and purchased plumbing supplies with a check made out to Consolidated Supply for $3,661.94. Markel further testified that he then gave defendant the plumbing supplies and helped load the supplies onto defendant's truck. Thereafter Markel attempted to deposit defendant's check into his account on two separate occasions, but on both occasions the check was returned for insufficient funds. Bank notations on that check, which was introduced into evidence, indicate that it was returned on August 9 and August 16, 1983. Markel also testified that he had attempted to contact defendant by telephone and by registered letter, which was returned. At the time of trial defendant had still not paid him.

Defendant testified that on August 4 when he issued the check, which was for previously received goods, the account contained over $10,000. However, on August 5, a check for $4,144.04 that he had postdated for September 1 was cashed prematurely. He also testified that on August 23 there were sufficient funds in the account to cover the check to Consolidated.

During the trial the parties stipulated to the State's admission of defendant's corporate bank statement for the month of August. The statement showed that defendant had had sufficient funds ($10,118.06) to cover the Markel check on August 4, 1983, the date on which the check was delivered. In addition the statement indicated that a check in the amount of $4,144.04 was paid by defendant's bank on August 5, 1983. On that day the account still had sufficient funds. Finally, the statement showed that on August 23 the account again had sufficient funds.

The trial court found Markel's testimony to be credible with regard to the delivery of the plumbing supplies. In addition, the court indicated that defendant's subsequent refusal to pay Markel reinforced the inference that, at the time in question, defendant had not intended to pay Markel. The court thereupon found defendant guilty of a deceptive practice.


• 1 We first consider defendant's contention that he was not proved guilty beyond a reasonable doubt. In a criminal prosecution the State has the burden of proving beyond a reasonable doubt all material and essential facts constituting the crime. The burden never shifts to the accused but remains the responsibility of the prosecution throughout the trial. (People v. Weinstein (1966), 35 Ill.2d 462, 220 N.E.2d 432.) It is not for defendant to establish his innocence but for the State to establish his guilt. (People v. Benson (1960), 19 Ill.2d 50, 61, 166 N.E.2d 80; People v. Magnafichi (1956), 9 Ill.2d 169, 137 N.E.2d 256.) In a deceptive practice prosecution, the State has the burden of proving beyond a reasonable doubt (1) that defendant made, drew, issued, or delivered a check, draft, or order for payment; (2) that defendant obtained thereby from another money, personal property, or other valuable thing; (3) that defendant knew at that time that his account was insufficient to pay the check, draft, or order in question; and (4) that defendant acted with the intent to defraud. (People v. Cundiff (1973), 16 Ill. App.3d 267, 305 N.E.2d 735.) In this cause, it is undisputed that when defendant issued and delivered his check there were sufficient funds in his account. But the State relies on the presumption created by the deceptive practice statute concerning a subsequently dishonored check as evidence of defendant's intent to defraud.

The Deceptive Practice Act states in pertinent part:

"(B) General Deception

A person commits a deceptive practice when, with intent to defraud:

(d) With intent to obtain control over property or to pay for property * * * 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, or when such check or other order is presented for payment and dishonored on each of 2 occasions at least 7 days part, is prima facie evidence that the offender knows that it will not be paid by the depository, and that he has the intent to defraud; * * *." (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 38, par. 17-1(B)(d).)

The last sentence of section 17-1(B)(d) can be construed to mean that the dishonoring of a check twice within seven or more days is sufficient to submit the issue of intent to defraud to the trier of fact or, in the alternative, that the same facts create a presumption of intent to defraud, thereby relieving the State of its burden of proof as to that element. (People v. Gray (1981), 99 Ill. App.3d 851, 426 N.E.2d 290. See also People v. Sumner (1982), 107 Ill. App.3d 368, 437 N.E.2d 786 (Johnson, J., dissenting); E. Cleary & M. Graham, Illinois Evidence, sec. 304.1 (4th ed. 1984) ("prima facie evidence" allowing introduction of evidence to trier of fact).) The State relies on the premise that the statute ...

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