Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. RICHARD A. HAREWOOD, Judge, presiding.
Conviction affirmed; sentence fixed by this court.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.
Defendant appeals his conviction of the crime of theft of an automobile with a value of more than $150, for which he was sentenced to a term in the penitentiary of not less than four years nor more than eight years.
The defendant waived a jury and was tried by the court.
The defendant contends that his conviction is unlawful because he was convicted of a crime for which he was not indicted, and all elements of the offense were not proved beyond a reasonable doubt.
The evidence showed that on January 6, 1964, Robert Ross parked a 1960 four-door white Chevrolet, which he owned, on Oak Street in the city of Chicago about 10:00 or 10:30 p.m. Upon his return between 5:30 and 6:00 a.m. on January 7, 1964, he found the car gone. He did not give anyone permission to use his automobile.
On January 10, 1964, a police officer went to 1101 East 65th Street, Chicago, Illinois, pursuant to a radio assignment. When he arrived at that address he found other police officers had arrived before him and he saw the defendant, Chester Price, getting out of a parked 1960 Chevrolet. A police officer asked the defendant who owned the automobile, and, according to the officer, the defendant responded that it was his automobile. The defendant was then asked if he had anything to prove that it was his car and he produced a sales contract bearing the name of Robert Ross. The officer also testified that Price stated that the automobile belonged to a friend of his named Robert Ross, who had loaned it to him at approximately 8:00 a.m. on January 10th. The officer then testified that the defendant made several phone calls but then told the officer that he was unable to contact Mr. Ross. The officer examined the automobile and observed that there was a key in the ignition on a key ring and that the key ring contained four keys. The officer testified that the defendant stated that he had been attempting to remove the rear seat from the automobile in order to get at the spare tire because the trunk key was broken off in the trunk. None of the four keys on the key ring would open the trunk lock, and the officer testified that there was no key broken off in the trunk lock.
At the police station the defendant had a conversation with a detective of the Chicago Police Department between 11:00 and 12:00 p.m. on January 10, 1964. According to the detective's testimony, the defendant stated that he had driven the automobile in question, and that he had obtained the car from Robert Ross two days previously. He further testified that the defendant stated that he had met Mr. Ross at taverns on the north side and that Mr. Ross told him where the automobile was parked on Oak Street, that the ignition was open and that he could turn it on and drive it away. About one hour after the detective's conversation with the defendant, Ross arrived. Ross told the detective that he had never seen Chester Price before, and that he had not loaned his automobile to anyone.
The defendant testified that on January 10, 1964, he had left his grandmother's at 910 North Cleveland at 5:30 or 6:00 p.m. and had taken the elevated to his sister's apartment at 1103 East 65th Street where he arrived at approximately 6:30 or 7:00 p.m. He remained at his sister's apartment until about 8:30 p.m. when he left at his sister's request to go to the store for milk for her children. When he came out of the apartment building a police car stopped and policemen got out and asked him whose car was parked by the curb. Defendant testified that he said he did not know; that he had never seen the car in question before and that he had never been in the car. He also stated that he was never in possession of the sales contract but that the police had showed it to him. His testimony further was that the keys were shown to him and that he had told the police officers that they did not belong to him. Defendant stated that he did not own an automobile and did not have a driver's license but he did know how to drive. No evidence of value of the automobile was introduced.
The first point raised by the defendant is that his conviction is unlawful because he was convicted of a crime for which he was not indicted. The defendant's theory is that he was indicted for the theft of an automobile having a value of more than $100, and that he was convicted of the theft of an automobile having a value of more than $150. The indictment was in two counts. The first count alleged,
". . . that on January 7th, 1964, at and within said County Chester L. Price committed the offense of theft, in that he, knowingly obtained unauthorized control over an automobile, of the value of more than one hundred dollars, the property of Robert Ross, intending to deprive said Robert Ross permanently of the use and benefit of said property, in violation of Chapter 38, Section 16-1, of Illinois Revised Statutes 1963, . . ."
The second count of the indictment charged the defendant with the offense of criminal trespass to vehicles, in violation of chapter 38, section 21-2, of the Illinois Revised Statutes 1963. The court made no finding relative to the second count. The court found the defendant guilty of theft of automobile, property value more than $150, in manner and form as charged in the indictment. Section 16-1 of the Criminal Code, (Ill Rev Stats 1963, c 38, par 16-1) reads as follows:
"Sec. 16-1. Theft.) A person commits theft when he knowingly:
(a) Obtains or exerts unauthorized control over property ...