People v. Mitchell , 50 Ill. App. 3d 120 ( 1977 )

Mr. JUSTICE GEORGE J. MORAN,

dissenting:

In this case the finding of the requisite intent to defraud depends somewhat upon the evaluation of the credibility of Green. If, as the defendant testified, there was an agreement to hold the check, a debtorcreditor relationship was established and the defendant would not be subject to criminal sanctions. People v. Cundiff, 16 Ill. App. 3d 267, 305 N.E.2d 735.

“The main objective of cross-examination in similar situations should be to impair the credibility of the witness on the grounds that he had something to gain by testifying against the defendant.” (People v. Hanks, 17 Ill. App. 3d 633, 638, 307 N.E.2d 638, 642.)

The defendant sought to identify a motive for Green to testify falsely as evidenced by his failure to sign the complaint until after the bankruptcy proceedings had been initiated.

The majority opinion characterizes Green’s interest as the equivalent of any victim of a crime. Most victims of a similar transaction would have a civil or a criminal action open to them. The filing of the bankruptcy petition removed the option from Green. If, as defendant testified, there was an agreement to hold the check, the debt would be dischargeable in bankruptcy. Any civil proceeding against the defendant would be stayed under the Bankruptcy Act and the debt would be dischargeable in bankruptcy unless Green could establish that the property was obtained by false pretenses. (Section 17(a)(2) of the Bankruptcy Act (11 U.S.C. §35). His testimony in the criminal case, as well as the judgment of conviction, would be admissible in the bankruptcy proceeding. (Fed. R. Evid. 801, 803(22).) Thus a motive to misrepresent the actual occurrence in order to salvage the debt from the possible discharge in bankruptcy exists. The failure of the trial court to allow cross-examination into this area in a case which hinges upon the credibility of the complainant is a clear abuse of discretion. Where such an abuse of discretion, as here, results in manifest prejudice to the defendant, we must reverse. People v. Halteman, 10 Ill. 2d 74, 134 N.E.2d 286; People v. George, 49 Ill. 2d 372, 274 N.E.2d 26.

Defendant also alleges the trial court erred in refusing to give her tendered instruction or allow her to amend the instruction. Defendant’s preferred instruction is as follows:

“Where at the time of a sale the seller agrees to hold buyer’s check for payment until a later date, a debtor creditor relationship was established and the buyer was not guilty of violating the deceptive practice statute when the check was not honored due to insufficient funds.”

By this instruction, defendant sought to instruct the jury that if the jury found that an agreement to hold the check for payment existed, then as a matter of law defendant lacked the intent to defraud and was not guilty. Under People v. Cundiff, 16 Ill. App. 3d 267, 305 N.E.2d 735, this is a correct statement of the law. The majority finds the instruction incomplete in its recitation of facts and thus tending to mislead the jury. Clearly, the instruction is an accurate and complete statement of the law and is not misleading. Nor is the majority’s reliance upon the instructions given as an adequate foundation of law for the jury’s decision convincing.

The following instructions, in the form of IPI Criminal No. 13.23 and IPI Criminal No. 13.24, were given at trial:

“A person commits the crime of deceptive practice who 000 with intent to defraud and to obtain control over property of another issues and delivers a check upon a bank knowing that it will not be paid by the bank.”

“To sustain the charge of deceptive practice, the State must

prove the following propositions:

First: That the defendant, with intent to defraud and to obtain control over property of the Milnot Co. issued a check upon a bank; and

Second: That the defendant knew that 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 of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.”

The combination of IPI Criminal Nos. 13.23 and 13.24 is not sufficient to overcome the failure of the trial court to instruct the jury on the law according to defendant’s theory. Neither IPI Criminal No. 13.23 nor No. 13.24 contains an express statement on the meaning of intent to defraud as applied to the case.

“[A] defendant is entitled to the benefit of any defense shown by the entire evidence and has the right to have the jury instructed as to the law applicable to any state of facts which the jury might legitimately find to have been proved from the evidence.” People v. Kalpak (1957), 10 Ill. 2d 411, 424, 140 N.E.2d 726, 734.

Only slight evidence upon a theory of the case is necessary to support an instruction, and a court is not to weigh the evidence in determining whether the instruction will be given. (People v. Hall, 25 Ill. App. 3d 992, 324 N.E.2d 50; People v. Khamis, 411 Ill. 46,103 N.E.2d 133.) In this case the defendant testified that Green agreed to hold the check for later payment. Although this was denied by Brakenhof and Green, it is clearly sufficient evidence to support the tendered instruction. The defendant is entitled to have the jury determine the facts and apply the law to those facts. The failure to give the instruction requires reversal.