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People v. Cleveland

JANUARY 23, 1969.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

ROY CURTIS CLEVELAND, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Winnebago County, Seventeenth Judicial Circuit; the Hon. HARRY D. STROUSE, JR., Judge, presiding. Judgment affirmed.

MR. PRESIDING JUSTICE ABRAHAMSON DELIVERED THE OPINION OF THE COURT.

Rehearing denied February 20, 1969.

This is an appeal from an order of the Circuit Court of Winnebago County granting the defendant probation.

The defendant, Roy Curtis Cleveland, was indicted for the offense of theft on December 14, 1966. On January 4, 1967, the defendant entered a plea of not guilty. Various motions were filed by the defendant, including a request for a Bill of Particulars. By stipulation of the State and the defendant, an auditor's report would be allowed to stand in lieu of a Bill of Particulars. Although submitted to defendant and the court, this report was not made a part of the record. On July 17, 1967, defendant withdrew his plea of not guilty and entered a plea of guilty. This plea was accepted. Leave was granted the defendant to file a petition for probation and the case was continued to October 31, 1967. On that date defendant was admitted to probation for a period of five years, conditioned upon his confinement to the Illinois State Farm at Vandalia, Illinois, for a term of five months beginning on November 27, 1967, and also that within 30 days from his release therefrom that a final amount of restitution be determined by agreement of the defendant or by court order; that within 90 days after the amount of restitution had been established by agreement or by order of court, the amount should be paid in full.

The defendant was, at the time of trial, a man of 72 years of age, a resident of Cherry Valley, Illinois, and, prior to the indictment, had been the treasurer and a member of the Board of Trustees of the Cherry Valley Fire Protection District.

The indictment returned herein provided:

"That on the 30th day of September, 1966, in the County of Winnebago and State of Illinois, one Roy Curtis Cleveland committed the offense of Theft, in that he knowingly obtained unauthorized control over certain checks and money of the legal money and currency of the United States of America, having a value exceeding One Hundred Fifty Dollars ($150.00), the property of Cherry Valley Fire Protection District, a municipal corporation, Roy Curtis Cleveland thereby intending to deprive Cherry Valley Fire Protection District, a municipal corporation, permanently of the use or benefit of said property, in violation of Paragraph 16-1, Chapter 38, Illinois Revised Statutes."

Defendant appealed directly to the Supreme Court of this state. The Court found that defendant's assertions of constitutional claims were lacking in substance and transferred the appeal to this Court.

The defendant's contention that the indictment fails to contain on the face some words to the effect that the Grand Jury was duly selected and sworn and made the presentment of the indictment has heretofore been passed upon by this court in People v. Marks, 63 Ill. App.2d 384, 387, 211 N.E.2d 548, wherein we found there was no necessity of reciting on the face of an indictment compliance with Criminal Law and Procedure, c 38, § 112, par 1-4 (Ill Rev Stats 1965) nor does the Legislature so require.

Section 16-1 of the Criminal Code (c 38, § 16-1, Ill Rev Stats 1965) provides:

"A person commits theft when he knowingly:

"(a) Obtains or exerts unauthorized control over property of the owner; or

"(b) Obtains by deception control over property of ...


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