Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. HERBERT R. FRIEDLUND, Judge, presiding.
Judgment of conviction reversed.
MR. JUSTICE LYONS DELIVERED THE OPINION OF THE COURT.
This is an appeal from a conviction, for the crime of theft, after a jury trial. Defendant Gallas was sentenced to 4 to 10 years and defendant DiDonato to 2 to 10 years in the Illinois State Penitentiary.
Defendants were indicted on four counts of theft, said indictments charging defendants with unauthorized control over four television sets, in violation of Chap 38, § 16-1, Ill Rev Stats (1961).
The testimony on behalf of the State showed that a driver for Maloney's Wabash Motor Service, Inc., picked up some television sets from Zenith Radio Distribution Corporation, in Chicago, on February 14, 1963. The driver then went to a restaurant for coffee and when he returned to his truck someone held him up and took his tractor and trailer.
One Raymond Shampo testified that he was employed by the Admiral Automotive Company, 2858 Archer Avenue, Chicago; that Admiral Automotive is a generator and starter rebuilding plant; that the store also sells television sets, clothes, whiskey, women's dresses, coats and topcoats; that a Mr. Gruse was his supervisor; that on February 14, 1963, at about 9:00 a.m., he saw Gruse talking to a man by the name of Dee, after which six men, the witness and five others, unloaded a truck; that about sixty pieces were taken off the truck and put in the basement of the store; that the next day he saw defendants around 2:00 p.m., at which time he gave them three television sets; that later that day, around 6:00 or 7:00 p.m., he saw the men again; that a television set had been broken and one of defendants wanted to exchange the set for another; that the witness gave them three more sets from the basement; that FBI agents were present on the premises while all this occurred; and that after the witness brought up three television sets from the basement, the FBI agents arrested defendants while they were placing them in the trunk of their car. Shampo further testified that he had taken a television set from the premises but brought it back after he learned it was stolen.
FBI agent Bennett testified that he was watching the building at 2858 Archer Avenue on February 15, 1965, and that about 6:00 or 6:30 p.m. he was inside the building and saw defendants get out of their car and take a carton out of the trunk; that thereafter, he saw defendants load three cartons into the trunk and get into the car, after which other FBI agents arrested them; and that several other people came into the premises during the day and left with various cartons but these other persons were not arrested. Later, defendants made an offer of proof that they could show, through the agent, that two Silvertone televisions were recovered by another agent, which had previously been part of a stolen load of Silvertone televisions and that the persons who had purchased these two television sets were not arrested or charged with the crime of receiving stolen property. The offer of proof was denied.
FBI agent Moore testified that at about 6:30 p.m. on the evening of February 15, 1965, he was on the premises of the Admiral Automotive Parts and heard someone say to Ray Shampo, "I am returning one of the sets"; that he also heard the same person say, "We want three more sets"; that he saw defendants take the cartons out the back door to their car; that defendants were then arrested; that the witness was on the premises pursuant to a search warrant issued by a United States Commissioner, relating to stolen Silvertone television sets; that a large number of Silvertone television sets were recovered on the premises of the Admiral Automotive store; and that the four television sets recovered from the possession of the defendants were Zenith sets.
Defendant Anthony DiDonato testified that he was 52 years of age, and operated a restaurant in Plano, Illinois; that he knew Gruse for about three months before February 15, 1965; that Gruse was the operator of both a general merchandising and generator rebuilding business; that before the date of his arrest, he had been at the place of business and he purchased some items of personal wear; that on February 15, he went to the place of business to buy a generator for this car, which was then parked at 621 South Loomis; that he called co-defendant Anthony Gallas to drive him there; that he arrived before noon and bought a generator; that he also bought three more jackets for $2 apiece and gave Gruse $10.50 for a generator; that Gruse asked if he would be interested in buying a couple of television sets, because Gruse said he had just bought a "job lot"; that the sets would cost $100 apiece; that he did not buy a television set at this time, but just picked up the jackets and the generator; that he then went home, talked to his wife who agreed to the purchase; that Gallas also decided he wanted one; that he and Gallas returned at about 2:00 or 3:00 in the afternoon and bought two sets from Gruse and paid him for them; that he understood that a "job lot" meant merchandise left over which stores could not sell; that he took his television set home but the set would not work; that around 6:00 p.m. he and Gallas returned to the store; that he took the television set from his car, brought it into the store and told them it would not work; that at that time, he asked for three television sets because Gallas' sister wanted one, as did his oldest son; that he also required a set to replace the one he purchased earlier which he had returned; and that he did not pay for the sets at that time. DiDonato also testified that he had no knowledge that the television sets had been stolen.
At the close of the People's case, defendants moved for a directed finding of not guilty on all counts. The following took place: . . . . . .
The Court: As to the first count I am directing that one out.
Mr. Martwick: (Assistant State's Attorney) On what basis?
The Court: On the basis that there is I don't think that you proved recent possession.
Mr. Martwick: They have possession. It is stipulated those are the sets they had, not even 24 hours later.
The Court: The second count as to receiving, that will stand. We will continue on the receiving.
Mr. Martwick: 24 hours later isn't recent possession?
The Court: Not in this case, not on the circumstances.
Mr. McDonnell: (Defense Attorney) I can finish this tomorrow, Judge. I will have one witness.