dissenting:
I would affirm the decision of the trial court. The statute defining deceptive practices provides that failure to have sufficient funds when the check is delivered is prima facie evidence that the offender knows it will not be paid by the depository, and he has intent to defraud (Ill. Rev. Stat. 1979, ch. 38, par. 17 — 1(B)(d)). I think the prosecution proved beyond a reasonable doubt that at the time of the transaction defendant had the statutorily required intent to defraud.
The record revealed that when Sumner issued the $2,100 check he knew he did not have sufficient funds in his account to cover it. Further, when the check was presented for payment, it was stamped “Insufficient Funds” and returned to Fanning. Sumner argues that his own testimony was legally sufficient to establish a reasonable defense showing he lacked the necessary intent to defraud, thus, requiring the State to refute his defense. I disagree with defendant’s analysis.
The question of whether or not a defendant has an intent to defraud is one for the trier of fact to determine upon consideration of all the circumstances in the case — not alone on defendant’s declaration of his intent. (People v. Lundblade (1981), 95 Ill. App. 3d 474, 478, 420 N.E.2d 784, 786.) The testimony thus presented a conflict between the State’s evidence and defendant’s declaration which was the function of the judge to resolve, having an opportunity to observe the witnesses and their credibility. The judge obviously chose not to believe the testimony of defendant.
I believe the State was not required to show that defendant deposited funds in the bank but later withdrew them. The trier of fact found against defendant, and I would affirm his finding.