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People v. Dell

DECEMBER 20, 1966.

PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

RUTH DELL, APPELLANT.



Appeal from the Circuit Court of Lake County; the Hon. PHILIP W. YAGER, Judge, presiding. Judgment of conviction affirmed.

MR. JUSTICE ABRAHAMSON DELIVERED THE OPINION OF THE COURT.

The defendant was convicted of theft after a jury trial in the Circuit Court of the Nineteenth Judicial Circuit, Lake County, and sentenced to a term of five to ten years in the Illinois State Reformatory for Women.

The indictment, filed December 7, 1964, charged that the defendant "committed the offense of theft, in that she knowingly obtained control over 129 pairs of trousers, having a value exceeding One Hundred Fifty Dollars ($150), the property of Myron Steinberg, knowing that said trousers had previously been stolen from Myron Steinberg by another and Ruth Dell thereafter knowingly abandoned such trousers in such manner as to deprive Myron Steinberg permanently of the use and benefit of said trousers, in violation of Section 16-1(d), Chapter 38, Illinois Revised Statutes 1963. . . ."

This appeal is brought on defendant's contentions that there was a fatal variance between the proof of ownership of the pants and the ownership alleged in the indictment; that there was no proof that the pants introduced into evidence were ever possessed by the defendant; that there was no proof that the defendant knew that the pants allegedly in her possession were stolen; that there was no proof as to the value of the pants; that the defendant was denied her right to trial by jury in that the court directed the jury to evaluate the pants at $250; that the defendant was denied a fair trial because the State attempted to introduce evidence of other, unrelated crimes; and, finally, that the conviction cannot be sustained as it is based on the uncorroborated and improbable testimony of an accomplice to the alleged crime. We will deal with each of these contentions in the order we have indicated.

As we have seen, the indictment stated that the trousers were "the property of Myron Steinberg." At the trial, Steinberg testified that he was a partner in a business known as the Illinois Railroad Salvage Store. Upon his arrival at the store on the morning of July 21, 1964, Steinberg noticed that it was in disarray and that an entrance had been accomplished by the removal of five or six cement blocks from the south wall. On cross-examination, he stated that his partner was Norman Cutler.

Cutler testified that he was a partner of the Salvage Store and that on July 21 he noticed, in addition to the facts related by Steinberg, that the entire stock of men's work pants was missing. When asked if he recognized People's Exhibit No. 1 for identification, consisting of 129 pairs of pants, Cutler replied "Those are my pants." Later, Cutler was asked who owned People's Exhibit No. 1 on July 20, 1964, and the following colloquy resulted:

"A. I did.

"Q. In addition who else owned it?

"A. I have a partner.

"Q. What is his name?

"A. Myron Steinberg."

The defendant cites several Illinois cases to the point that the specific ownership of stolen property is an essential allegation in an indictment and, as such, must be proven, as laid in the indictment, at the subsequent trial. The People v. Cohen, 352 Ill. 380, 382, 185 N.E. 608 (1933); The People v. Krittenbrink, 269 Ill. 244, 245, 109 N.E. 1005 (1915). The reason for the rule was to permit the defendant to plead either a prior acquittal or conviction in the event of a later prosecution for the same offense. The People v. Smith, 341 Ill. 649, 651, 173 N.E. 814 (1930).

However, under the Criminal Code of 1961, the owner of property as used in the section entitled "Part C. Offenses Directed Against Property" is defined as follows:

". . . . . `owner' means a person, other than the offender, who has possession of or any other interest in the property involved, even though such interest or possession is unlawful, and without whose consent the offender has no authority to exert ...


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