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People v. Kurtz

MAY 2, 1966.

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

PHILIP KURTZ, ET AL., DEFENDANTS-APPELLANTS.



Appeal to the Appellate Court, Fifth District, from the Circuit Court of Bond County (Third Judicial District); the Hon. HAROLD R. CLARK, Judge, presiding. Judgment modified and cause remanded with directions.

GOLDENHERSH, P.J.

Rehearing denied May 21, 1966.

The defendants, Philip Kurtz, Larry C. Irving and James H. Grogan, were tried by jury in the Circuit Court of Bond County and convicted of the crime of theft of property exceeding $150 in value (c 38, § 16-1, Ill Rev Stats 1965) and sentenced to the penitentiary, Kurtz and Grogan for terms of not less than 5 nor more than 10 years, and Irving for not less than one nor more than 2 years.

The indictment charged the theft of a 1959 Ford and that it was the property of Lamoine D. Brown.

Defendants, as grounds for reversal, argue that the People failed to prove beyond a reasonable doubt that the value of the automobile allegedly stolen exceeded $150, failed to prove that Lamoine D. Brown owned the automobile, that the indictment is defective in that it fails to definitely identify the exact property allegedly stolen, that the circuit court erred in refusing to grant defendants' motions for continuance and erred further in denying defendants' motion for mistrial during the questioning of a venireman on voir dire.

On the morning on which the case was set for trial, defendants filed two motions for continuance. The first motion moved for continuance on the ground that defendant Irving was suffering from acute peptic ulcer and anxiety reaction, and a medical report dated four days earlier stated that it was the opinion of his physician that he could not stand trial at that time. It is clear from the testimony of defendant, Irving, in support of the motion, that he had been advised to undergo surgery for the correction of his condition but had not done so. The motion was addressed to the discretion of the trial court (c 38, § 114-4(e), Ill Rev Stats 1965) and the record shows no abuse of discretion.

Defendants' second motion states that the Greenville Advocate, published in Bond County on a biweekly basis, in its edition dated April 6, 1964, four days after defendants' arrest, and in the edition dated March 11, 1965, four days before the trial date, contained articles which were inflammatory, and so prejudicial to the defendants as to make it impossible for them to receive a fair trial. The publisher of the paper testified that of the 60 persons on the jury panel, 45 received the paper. Portions of the voir dire examination of prospective jurors are abstracted and an examination of the testimony does not indicate that the jurors were influenced by what they read.

The achievement and maintenance of a stable equilibrium between the freedom of the press and the right of one accused of crime to a fair trial before a jury not influenced by publicity regarding the alleged offense, presents an ever recurring problem. The articles of which defendants complain can hardly be described as examples of unbiased, objective news reports, but they are not inflammatory, as were those considered by the Supreme Court in The People v. Hryciuk, 5 Ill.2d 176, 125 N.E.2d 61. A further distinction between this case and Hryciuk is that the inflammatory articles there appeared during the trial, on the evening before the case went to the jury, while here defendants had ample opportunity to interrogate the jurors as to whether they had read the articles, and if so, whether they were influenced thereby.

Defendants were entitled to 30 peremptory challenges and the record does not show how many were used, and nothing appears in the record upon which to base the conclusion that the 12 jurors and the alternate accepted by defendants were not impartial, and disposed to render a fair verdict. On the basis of the record on voir dire examination, the denial of the motion for continuance was not an abuse of the trial court's discretion. The People v. Brinn, 32 Ill.2d 232, 204 N.E.2d 724.

During the course of the voir dire examination the State's Attorney asked a venireman whether, if the State proved the defendants guilty beyond a reasonable doubt, he would "have any compulsion against finding a man guilty of crime, even though it means he might be imprisoned?" Defendants moved for a mistrial, and contend here that the court erred in denying the motion, although the question was stricken, and the jury instructed to disregard it.

The cases upon which defendants rely involve closing arguments to juries in which counsel for the People suggested the possibility of probation, and the Supreme Court held such reference to be prejudicial. The reason for so holding, is that a jury might be inclined to convict a defendant in a close case, if it thought his punishment might not be too severe. Here the converse situation is presented, the jury was apprised that a finding of guilty could result in defendants' being imprisoned. The court properly struck the question, and did not err in denying the motion for mistrial.

The indictment charges the automobile stolen was the property of Lamoine D. Brown, and the certificate of title showed the owner to be Brown Tractor Sales by Lamoine D. Brown. There is no evidence that Brown Tractor Sales is a corporation, and although not clear from the record, it appears that Brown Tractor Sales is a trade name for an individual proprietorship by Lamoine D. Brown. Under the statutory definition of "owner," c 38, § 15-2, Ill Rev Stats 1965, and the holdings in People v. Hansen, 28 Ill.2d 322, 192 N.E.2d 359, and People v. Tomaszek, 54 Ill. App.2d 254, 204 N.E.2d 30, the proof of ownership was sufficient to support the conviction.

Defendants contend that because the indictment did not allege the serial number of the stolen vehicle, it was defective and will not support the conviction. The purpose of an indictment is to apprise a defendant of the exact crime with which he is charged, so that he may prepare his defense, and may plead the judgment of conviction, or acquittal, in bar of a second prosecution for the same offense. An indictment which charges the theft of a 1959 four-door Ford, names the date of the offense, the owner, and the place where the theft occurred meets that test, and the failure to include the serial number of the stolen automobile did not make the indictment fatally defective.

Defendants' contention that the People failed to prove the value of the stolen automobile exceeded $150 requires a review of the valuation evidence adduced. Lamoine D. Brown, owner of the stolen automobile, described it as a 1959 four-door Ford, Fairlane 500 series, bearing a dealer's license plate, and testified that in connection with his business he bought and sold used trucks, and perhaps one or two used automobiles each year. The State's Attorney asked the value of the stolen car on the date of the theft, defense counsel objected on the ground that the witness was not properly qualified to express an opinion as to its value, and the objection was sustained. The witness was asked whether he sold the car subsequent to that date, and over the objection of defense counsel, was permitted to testify that it was sold for $200 ...


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