Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. F. EMMETT MORRISSEY, Judge, presiding.
MR. PRESIDING JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.
Rehearing denied March 6, 1968.
In a non-jury trial, Edward McCormick was found guilty of theft. He was placed on probation for five years with confinement in the House of Correction for the first six months.
He contends that his conviction should be reversed because the indictment was defective, the corpus delicti of the crime was not established and the evidence did not prove him guilty beyond a reasonable doubt.
The Stavros Farm Equipment Company, Wheeling, Illinois, was burglarized the night of November 8th or early in the morning on November 9, 1963. A snowplow, a seven-foot plow blade, a battery for a diesel tractor, a shovel and a tire and wheel were among the items stolen. McCormick was arrested around 1:00 a.m., November 9th, about a mile from the Stavros Company, after a Wheeling police officer observed him driving a truck which had its rear lights and license plate obscured by a hanging tailgate. He was accompanied by a passenger with whom he attempted to change places as the truck was brought to a stop. In the back of the truck were a snowplow (in an unopened carton), a seven-foot snowplow blade, a diesel battery, a shovel and a tire and wheel. McCormick told the arresting officers that he purchased the snowplows in Wisconsin two weeks earlier, that they had been in the truck all that time, and that he was taking them home. He said he had a bill of sale for them but he did not produce one. Moreover, the carton in the open truck was clean and did not appear to have been exposed to weather. The property in the truck was identified as belonging to the Stavros Company.
At his trial McCormick denied telling the officers that he had bought the plows in Wisconsin. He testified that he bought them and the other articles for $300 on the evening of November 8th from an acquaintance named Gordie, whose address he did not know and whom he had been unable to locate. He explained that he ran into Gordie, whom he had met two or three times prior to the sale, in a tavern in Lake Zurich, and that Gordie talked, as he had on a prior occasion, about some snowplows a friend of his had for sale. McCormick was interested because he was a contractor and in the wintertime plowed parking lots for schools and stores. McCormick further testified that after some dickering about prices, Gordie left to get the merchandise and returned a couple of hours later. In the meantime, McCormick left the tavern, borrowed a truck (which happened to have a battery, a shovel and other articles in it) returned and waited for Gordie. Gordie came back with two plows. After more dickering McCormick bought them for $300 and Gordie threw in the tire and wheel as part of the deal.
As proof of the above transaction, McCormick produced in court a bill of sale and a cancelled check the former purporting to bear Gordie's signature and the latter his endorsement. The check, for $200 contained on its back the words, "Part Payment in Full. . . ." McCormick testified that in addition to the check, $100 was paid in cash fifty or sixty dollars of which was his own money; the balance was borrowed from John Dillon, a friend of his who was present. Dillon testified for the defendant and supported his story of the transaction. However, Dillon stated that he furnished all the cash paid to Gordie that none of the defendant's money was used.
The indictment was in three counts. The first charged burglary, the second theft and the third theft by obtaining unauthorized control over property knowing it to have been stolen by another. The trial judge found McCormick guilty but did not designate the count under which the finding was made.
It is evident, however, from the comments made by the judge that he found McCormick guilty of the crime commonly known as "receiving stolen property," which was the offense specifically charged in the third count. The court accepted McCormick's story about buying the property but believed that he paid only $200 for the articles which were worth, according to the State's evidence, over $700. The court noted that the words written on the back of the $200 check: "Part Payment in Full . . ." were inconsistent, and deduced that as originally written the words were: "Payment in Full" and that the word "Part" was written in at a later date so that it could be said that the price paid for the material was more than $200. The court also observed that the property was bought under circumstances which would have aroused the suspicion of an honest man that it was stolen, and that if McCormick had a bill of sale at the time of his arrest he would have been eager to display it.
The defendant's first contention is that he was convicted under the third count of the indictment and his conviction cannot stand because this count was defective. Count three failed to allege an essential element of theft: the intent to deprive the owner permanently of the use and benefit of his property. Thus, as the defendant claims and the State admits, the count was defective.
The State argues, however, that count two was valid and supports the conviction. Theft, which was charged in count two, is defined in section 16-1, chapter 38, Ill Rev Stats 1963, and, insofar as it is pertinent here, is as follows:
"Sec 16-1 Theft] A person commits theft when he knowingly;
"(a) Obtains or exerts unauthorized control over property ...