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The People v. Kurtz

OPINION FILED MARCH 29, 1967.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

PHILIP KURTZ ET AL., APPELLANTS.



APPEAL from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Bond County; the Hon. HAROLD R. CLARK, Judge, presiding.

MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:

The defendants, Philip Kurtz, Larry C. Irving and James H. Grogan, were convicted of the theft of an automobile which a jury in the circuit court of Bond County found to have had a value in excess of $150. Kurtz and Grogan received sentences for terms of not less than five nor more than ten years and Irving for not less than one year nor more than two years.

The defendants appealed to the Appellate Court for the Fifth District and urged inter alia that the State failed to prove that the automobile in question was of a value in excess of $150, and that the trial court had erred in denying the defendants' motions for a change of venue and for a continuance. These motions had been based on two allegedly prejudicial articles concerning the defendants which had been published in a local newspaper prior to trial.

The appellate court held (69 Ill. App.2d 282) that the People's evidence that the automobile involved was of a value in excess of $150 was insufficient, and under section 121-9 of the Code of Criminal Procedure (Ill. Rev. Stat. 1965, chap. 38, par. 121-9), the court modified the judgment of the trial court in that it reduced the degree of theft of which the defendants had been convicted. Also, the sentences imposed by the trial court were vacated and the cause was remanded to the circuit court of Bond County with directions to impose upon each defendant a fine of $500 and a sentence of one year.

The appellate court, with one judge dissenting, held that the trial court did not abuse its discretion when it denied the defendants' motion for a continuance because of the newspaper articles concerning the case which had been published prior to the trial.

We granted defendants' petition for leave to appeal to this court.

Now, the defendants renew their argument that the trial court erred in denying their motions for a change of venue and for a continuance. They argue too, that the People failed to prove that the automobile was of a value in excess of $150, and that the appellate court should have reversed the cause because of the asserted failure of the People to prove a fair cash market value of the automobile.

The People deny that the publicity the case received was such as to impair the fairness of the defendants' trial. The People argue that the value of the automobile was properly proved to have been in excess of $150. It is urged that should this court rule that it was not sufficiently proved that the value of the automobile was in excess of $150 that the cause should be remanded to the trial court for sentencing. This remanding is sought by the People because, it is stated, the criminal records of the defendants or certain of them do not appear in the record, and our attention is invited to section 16-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1965, chap. 38, par. 16-1), which provides in part that one convicted of a theft of property not exceeding a value of $150 may be imprisoned from one to five years if such a person had a prior conviction for theft.

Section 114-6 of the Code of Criminal Procedure (Ill. Rev. Stat. 1965, chap. 38, par. 114-6) provides that a motion for a change of place of trial "shall be in writing and supported by affidavit which shall state facts showing the nature of the prejudice alleged." Here, the defendants' motion for a change of place of trial, based on the two news articles, was made orally, and so it was properly denied.

The first article was published shortly after the offense concerned, approximately eleven months prior to the trial of the defendants. The article quoted the local sheriff to the effect that he was satisfied that the defendants were the three men for whom a posse of about twenty-five men had searched the preceding day. He was quoted also as stating that the defendants had secreted themselves in the underbrush and later had appropriated the automobile in question. The article stated that the defendants in "low tones" had waived a preliminary hearing. The publication identified two Madison County deputy sheriffs who were described as waiting in the courtroom corridors to serve the defendants with warrants on a charge of robbery. The article stated that the defendants were charged with a robbery in Alton where they had been surprised by a watchman.

The second publication appeared on March 11, 1965, three days prior to the trial. Its caption read "Auto theft case set for Monday." It stated that the defendants had been arrested after a search which commenced on the afternoon preceding the day of arrest. It related that the defendants had been sought in connection with the robbery in Alton and that they had eluded officers in the underbrush. It went on to state that the defendants were under indictment, that bond had been set at $10,000 and that the defendants at arraignment had denied the theft. The article said that defendants' had a story that a man loaned them the automobile and told them to leave it on Route 66 near Springfield when they completed their use of the car.

The publisher testified that the newspaper was published twice weekly in Bond County; that the average circulation per issue was 4555 and that the circulation of the March 11, 1965, issue was 4681. He testified that 4027 of the 4681 papers had gone to Bond County residents and that his paper had been sent to 45 of the 60 persons on the original jury list.

Sixty-one persons were examined in the selection of the jury. Fifty of them had read of the case in a newspaper; nine were excused and not questioned as to whether they had read of the case and two persons stated they had not read of the case. Eleven of the twelve jurors and an alternate juror stated that they had read of the case; one juror did not recall reading of the case and the other juror was not questioned as to whether she had read of the case. All the jurors denied having formed any impression of the defendants' innocence or guilt from the news accounts, and each juror stated that he or she knew of no reason why he or she could not serve as a fair and impartial juror in the case. The examination of the jurors on the question of the publications was, in large part, conducted by the trial court. As the State observes in its brief, the defendants were entitled to 33 peremptory challenges. Only 18 peremptory challenges were exercised.

An accused has a manifest right to a trial by an impartial jury under the United States constitution (sixth amendment) and under the ...


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