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People v. Kelly

DECEMBER 30, 1965.

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

ALFRED KELLY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County, Criminal Division; the Hon. ALFONSE F. WELLS, Judge, presiding. Affirmed with reduced sentence.

MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.

In a bench trial defendant was convicted of theft and, on a finding that the property stolen exceeded $150 in value, he was sentenced to the penitentiary for a term of three-to-six years. The only point raised by defendant on this appeal is that the evidence failed to show that the stolen automobile had a value in excess of $150. In his brief he contends, therefore, that the sentence should be reduced to one appropriate to a misdemeanor for theft of property not exceeding $150 in value.

The indictment which was returned on August 17, 1964, charged defendant with theft of property exceeding $150 in value, in violation of section 16-1(a) of the Criminal Code. *fn1 Ill Rev Stats (1963), c 38, § 16-1(a).

A Behavior Clinic examination was conducted, and, after a sanity hearing, on a jury's verdict, defendant was adjudged competent to stand trial. A jury was waived and, at the conclusion of the evidence, the trial judge found defendant guilty of "grand theft, value of property over $150.00." Judgment using the same terminology was entered (as set forth in the common law record), and the usual post-trial motions were denied. A hearing was held to consider matters in aggravation and mitigation, and sentence was imposed as related above. The sentence also included the language quoted in this paragraph concerning "grand theft" and the value of the property stolen.

The report of proceedings discloses testimony that a garageman had estimated the cost of repair of the stolen 1959 Chevrolet automobile at $500, it having been wrecked at the time of defendant's arrest. We agree with defendant that this testimony does not necessarily evidence the value of the car at more than $150. People v. Fognini, 374 Ill. 161, 28 N.E.2d 95. The only testimony bearing directly on value is that of the complaining witness who frankly stated that he did not know if his automobile was worth more than $150 at the time of its theft.

The significance of the value of the stolen property is at once apparent upon examination of the penalty provisions of section 16-1 which read:

A person first convicted of theft of property not from the person and not exceeding $150 in value shall be fined not to exceed $500 or imprisoned in a penal institution other than the penitentiary not to exceed one year, or both. A person convicted of such theft a second or subsequent time, or after a prior conviction of any type of theft, shall be imprisoned in the penitentiary from one to 5 years. A person convicted of theft of property from the person or exceeding $150 in value shall be imprisoned in the penitentiary from one to 10 years.

When it came time for the State to file its brief in this court, the State's Attorney filed instead a Confession of Error in which he acknowledged the record's lack of proof of the stolen automobile's value, and moved the court to reverse the conviction and remand the cause for a new trial. No objections or countersuggestions were filed by defendant, and, in the absence of objection, the motion was allowed as a matter of routine.

Several weeks thereafter defendant presented a motion to vacate the order reversing and remanding the cause for a new trial, arguing that, under the circumstances, defendant was entitled to an outright reversal. Again we have been left to pass on the motion unilaterally, as this time the State's Attorney has seen fit not to object.

Presently confronting us, therefore, are three alternatives: (1) to affirm the trial court's sentence of three-to-six years for "grand theft," (2) to recognize the State's claim that there should be reversal and remandment for a new trial, or (3) to accede to the defendant's contention that his conviction should be reversed outright without remand or modification. We are of the opinion that none of these positions is correct, and we elect to follow a fourth route of our own choosing.

Considering first the State's Confession of Error as requiring reversal, we are not bound to recognize as error whatever a party may confess to be such, nor are we bound to follow the suggested remedy of either party for the cure of any such confessed error. As stated by the Supreme Court in Young v. United States, 315 U.S. 257, 258, 259:

The public trust reposed in the law enforcement officers of the Government requires that they be quick to confess error when, in their opinion, a miscarriage of justice may result from their remaining silent. But such a confession does not relieve this Court of the performance of the judicial function. The considered judgment of the law enforcement officers that reversible error has been committed is entitled to great weight, but our judicial obligations compel us to examine independently the errors confessed. See Parlton v. United States, 75 F.2d 772. The public interest that a result be reached which promotes a well-ordered society is foremost in every criminal proceeding. That interest is entrusted to our consideration and protection as well as to ...


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