(dissenting). Defendant purchased used and inoperable equipment from complainant with which to commence a business enterprise. Defendant testified that they discussed the cost of putting the equipment into operating condition and the fact that it would produce no *165income until in operation; that the purchase was handled by the giving of two checks, one postdated six months and the other bearing the date of the transaction; that he asked complainant to hold the latter check until the equipment was repaired and put in operation and that complainant agreed to hold the check for two weeks.
The equipment never got into operation. The check was presented for payment by complainant two weeks after its making, and was dishonored because of insufficient funds. Defendant was charged with and appeals from conviction of issuing the check with intent to defraud complainant in violation of MCLA 750.131; MSA 28.326.
Defendant requested an instruction, based on People v Jacobson, 248 Mich 639; 227 NW 781 (1929), to the effect that there could be no intent to defraud if the complainant accepted the check subject to an agreement to hold it for a period of time. The request was denied by the trial judge on the ground that no such agreement had been shown and the people argue on appeal that such an agreement was not shown by credible evidence! I have always supposed that it is for the jury to determine such facts. Indeed, this case is near to calling for a directed verdict of acquittal, complainant’s initial assertion that he deposited the check the following day having crumbled into uncertainty and an ultimate admission that he did perhaps hold it two weeks. The bank records confirmed presentation two weeks after the transaction.
The question of such an agreement was the sole defense herein. The refusal to give such an instruction, timely requested, embodying the defense and supported by competent evidence was error. People v Hoefle, 276 Mich 428; 267 NW 644 (1936).
*166In People v Jacobson, supra, at 642-643, the Court said:
"The false representation, either express or implied, incident to the giving of a check, that the maker then has funds on deposit from which the bank will pay the check on presentation, with intent thereby to perpetrate a fraud, is the wrongful conduct for which this statute provides a penalty. It is not possible to thus perpetrate a fraud if the check is given by the maker and accepted by the payee with the latter’s full knowledge that the maker does not then have either a deposit or credit at the bank which will result in payment of the check on presentation. Such knowledge negatives the possibility of the payee being defrauded in the manner penalized by this statute. That he may have been defrauded in some other manner will not sustain a prosecution under this statute. The defendant’s promise to make a deposit on the following day with which to meet this check was no more than a promise to pay on the following day. Notwithstanding under certain circumstances promises made in bad faith as to future conduct may be the basis of a charge of fraud, such is not the offense embodied in this statute.” (Emphasis added.)
The trial court here instructed the jury on the elements of the offense by using the instruction contained in 3 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 1181, p 1576 (form 571). That instruction paraphrases Jacobson but omits the word "then” employed in the quotation above, and does not adequately address itself to defendant’s claim of an agreement to withhold presentation of the check. The trial court further instructed the jury that there could be no intent to defraud if defendant had a reasonable expectation that the check would be paid when presented, People v Cimini, 33 Mich App 461; 190 NW2d 323 (1971), but this is a different question than that of *167whether an implied fraudulent holding out in the issuance of the check is negated by the express terms of its issuance.
The jury herein was confused by the instructions. It returned for clarification, indicating a finding on the facts that should have resulted in defendant’s acquittal, saying
"Should we decide intent at the date the check was written or at the time the defendant asked that the check be deposited?” (Emphasis added.)
In response, the trial judge read the statute without further explanation. The question that the jury asked was the right question. It was not answered nor had it been by the original instructions.
I would reverse.