Defendant was convicted of theft by obtaining services from United Rent-All in the amount of $8.76 in violation of Code 26-1807. He was sentenced to pay a fine of $25 and to confinement for 10 days, both suspended.

Defendant on appeal argues only the issue of the sufficiency of the evidence. The state's case consisted only of evidence that defendant had rented a pump from the United Rent-All on March 17, 1977 and returned it on March 19th but only paid for one day's rental. The defendant by this evidence showed that he rented a water pump on March 17, 1977, for the day at a cost of $8.76, from United Rent-All. As the pump would not function and the business being closed, he returned the pump the following morning and exchanged it. There was no discussion at this time about an additional day's charge. He returned the pump on March 19 to United Rent-All and no mention was made of any additional charge. Code 26-1807 provides: "A person commits theft of services when by deception and with the intent to avoid payment he knowingly obtains services, accommodations, entertainment, or the use of personal property which are available only for compensation." (Emphasis supplied.) The state has failed as a matter of law to establish that defendant obtained services by deception and with intent to avoid payment, essential elements of the crime charged.

Dorsey & Traver, Jerry B. Hatcher, Hugh M. Dorsey, III, for appellant.