dissenting. Appellant stands convicted of theft of property, having obtained it by deception with the purpose of depriving the owner of it. Ark. Stat. Ann. § 41-2203 (1) (b) (Repl. 1977). This alleged theft was charged as a class B felony because in the information and bill of particulars the State accused Appellant of having taken property of a value in excess of $2500.00. See Ark. Stat. Ann. § 41-2203 (2) (a) (i) (Repl. 1977).
The evidence of the intent of the Appellant to deceive was extremely weak. The record presented a picture of a person struggling to succeed in a business he thought would make a profit. It is true he lacked experience as a photographer, and he was an abysmal failure as a businessman, but his failure is not a crime. The majority opinion refers to instances in which he pleaded with a printer to get directories printed, and the record shows a great deal of effort expended in trying to get the directories together. The “substantial evidence” to which the majority refers is really nothing more than Appellant’s failure to deliver the directories. The argument seems to be that Appellant must have intended to deceive with respect to the agreements he entered to produce directories after he had failed so miserably to produce in accordance with some of his prior agreements. In quoting the statutory definition of “deception,” the majority opinion leaves out the part of subsection (3) (e) of the statute which is as follows:
“Deception as to a person’s intention to perform a promise shall not be inferred solely from the fact that he did not subsequently perform the promise.” Ark. Stat. Ann. § 41-2201 (3) (e) (Repl. 1977).
Assuming there was substantial evidence of deception here, however, I believe this record is devoid of evidence that the Appellant obtained property in excess of a value of $2500.00 as a result of the offenses charged. As the majority opinion points out, the churches were to pay nothing for the directories. Those institutions were out the value of whatever their services (no pun intended) might have been worth, but there was no attempt whatever to produce evidence of the value of the efforts they expended in getting their constituent families rounded up for the photography sessions. Nor was any attempt made by the State to show the difference between the value of what the church members received (the photographs) and what they were promised (the photographs plus the “free” directories).
The argument could be made that regardless of the fact that many if not most of the church members received photographs for their money, their money — all that was paid to Appellant for photographs and directories — was obtained by deception. The logical extension of that argument, and its fallacy, is perhaps best demonstrated by these illustrations which bear degrees of analogy:
1. X promises A a one-carat diamond in exchange for $1000.00. A gives X $1000.00, but X then delivers to A a chunk of glass which is completely without value and which X intended all along to deliver to A instead of a diamond.
2. X promises A a one-carat diamond in exchange for $1000.00. A gives X $1000.00, but X then delivers to A a diamond weighing three-quarters of a carat which X intended all along to deliver to A, knowing of the deficiency. The lesser stone is worth $750.00.
3. X promises A a one-carat diamond in exchange for $1000.00. A gives X $1000.00, but X then delivers to A a diamond weighing one and one-quarter carats, which X intended all along to deliver to A, knowing it to be larger than the one promised. The stone delivered is worth $1200.00.
If no account is taken of the value received by A, then in each of these illustrations, X could be convicted of theft of property of a value in excess of $1000.00. I simply cannot believe our statute contemplates that result in illustrations 2. and 3.
The record here shows many church members received and accepted photographs in exchange for their money. The most that can be said for certain is that Appellant took those parts of their payments which could fairly be attributed to the value of the “bonus” directories. We have no idea what that value was.
As pointed out in footnote 4. of the majority opinion, the record here is indeed “replete” with testimony as to other churches which had entered agreements with the Appellant. Even if that evidence was relevant to show a scheme or Appellant’s intent, it was completely irrelevant to show the value of the property obtained in the theft alleged here.
I would reverse and remand this case simply because there was no showing of the value of the property obtained by this Appellant.