Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. HERBERT M. PASCHEN, Judge, presiding. Judgment
MR. JUSTICE LYONS DELIVERED THE OPINION OF THE COURT.
Rehearing denied February 1, 1966.
This is an appeal from a conviction for the crime of theft, with imprisonment in the Illinois State Penitentiary for a term of not less than one nor more than five years.
In June of 1962, Pete Zaslawsky, a partner in Zaslawsky Iron and Metal Company, met defendant, Jack Kamsler, for the first time. Defendant, and one Allen Solomon, drove into Zaslawsky's place of business in a 1962 Cadillac, presented a business card indicating that they were from the Empire Outdoor Advertising Company and said that they were interested in purchasing steel sheets suitable for building outdoor advertising signs. After Zaslawsky told them that none were available, defendant and Solomon left.
On August 27, 1962, defendant telephoned Zaslawsky and indicated he was still looking for steel. Zaslawsky told defendant that he had 11,000 to 12,000 pounds of rusty, soiled, 20 gauge steel sheets available at $100 per ton. Defendant stated that he wanted to use the steel for signs, so it made no difference whether it was rusty or not. Zaslawsky accepted defendant's terms of an immediate purchase order with payment by check within ten days. A truck driven by William Gallowich of the L.C. Beck Cartage, picked up the rusty steel sheets from Zaslawsky in two loads on August 28th and 29th. Zaslawsky billed Empire $672.50 and rebilled them monthly.
On August 29th, at 8:00 a.m., following instructions from his office, Gallowich met defendant at 77th and Western near a bowling alley. Defendant looked at the first load of steel and told Gallowich to go to Zaslawsky's yard and pick up another 7,000 pounds of similar steel. He told Gallowich to take the steel to Ace Steel Supply Company, 1000 West 22nd Street and wait for a check. Gallowich picked up the second order of rusty steel from Zaslawsky and went to Ace Steel.
Frank Larson, the former treasurer of Ace Steel Supply, testified that he dealt with one Dick Conlon, in August of 1962 for some rusty steel, allegedly rejected by a customer. Larson identified defendant as the man he knew as Conlon. Larson said he and defendant arrived at a price of $35.00 per ton for the rusty steel. Larson made out a check for $241.83 to Empire Manufacturing and gave the check to Gallowich.
Zaslawsky testified that despite efforts to contact defendant and Solomon by telephone and letter from September on, he did not hear from them. He never received payment for the steel. At one point Zaslawsky checked 1964 East 73rd Street and found it to be a storefront and an answering service. In November of 1962 Zaslawsky made a formal complaint against defendant and Solomon.
Catherine Rogers of the Southmoor Secretarial Service, 6760 South Stony Island, testified that she knew defendant and Allen Solomon and performed telephone answering service for them, from the autumn of 1961 until July 20, 1962, and that they used the name Empire Manufacturing and Empire Advertising. On the application for the telephone answering service was the name "Dick Conlon." When defendant discontinued the Southmoor Service, he gave 2011 East 75th Street, Chicago, as his new address. Owners of telephone answering services at that address, and a subsequent one, 1964 East 73rd, testified that they took calls for defendant, Solomon and Empire Manufacturing.
Irving Nudelman, owner of a Currency Exchange, testified that he cashed the $241.38 check from Ace Steel to Empire. He said he knew defendant and Allen Solomon to be the owners of Empire.
The State then introduced evidence of nine steel transactions with five other steel and metal companies, all of which occurred prior to August 27, 1962. The defense objected to this testimony on the ground that guilt cannot be established by showing that defendant had committed other crimes. The court overruled the objections and allowed the evidence to be admitted.
On August 27, 1962, defendant and Solomon entered into the above described transaction with Zaslawsky Iron. Defendant was charged with theft by deception, theft by unauthorized control, and conspiracy. He was tried by a jury, found guilty of theft and conspiracy and sentenced to from one to five years in the penitentiary on the theft verdict.
It is defendant's theory of the case that: one, prosecution of this case was barred by virtue of the four-term act; two, that the indictment was insufficient; three, that the trial court should have granted defendant's Motion for a Bill of Particulars; four, that the trial court improperly admitted into evidence testimony of other crimes; and five, that the finding of guilty was against the manifest weight of the evidence.
The first contention raised by defendant, that prosecution should have been barred by virtue of the four-term act, is without merit. Section 748 of chapter 38 provides that:
Any person committed for a criminal or supposed criminal offense, and not admitted to bail, and not tried by the court having jurisdiction of the offense, within four months of the date of commitment, shall be set at liberty by the court, unless the delay shall happen on the application of the prisoner, or unless the court is satisfied that due exercise has been made to procure evidence on the part of the People, and that there is reasonable grounds to believe that such ...