Appeal from the Circuit Court of Cook County; the Hon. Charles
Barrett, Judge, presiding. Affirmed in part and reversed in part.
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
Rehearing denied May 19, 1969.
In a 2-count indictment, defendant, John J. Torello, Michael LaJoy and Joseph D'Argento were charged with "theft" and "criminal trespass to vehicle." On June 29, 1966, D'Argento pleaded guilty. In August 1967, a jury found Torello and LaJoy guilty of both charges. They were each sentenced to terms of two to five years on the theft count and two to five years on the trespass count. The instant appeal was perfected by Torello only.
On appeal, defendant Torello's contentions are: (1) Count I fails to charge a crime; (2) the record was deliberately permeated with evidence distinct and entirely unrelated to the charges brought to the intentional prejudice of the defense; (3) reversible error was committed in denying to defendant a prior statement of the State's principal witness; (4) the State failed to prove this defendant guilty beyond reasonable doubt; and (5) the court erred in its instructions to the jury and in failing to instruct as requested by the defense.
Count I of the indictment alleges that on May 2, 1965, the three defendants "committed the offense of theft, in that they, knowingly obtained unauthorized control over an automobile, of the value of more than one hundred fifty dollars, the property of Thomas Vana, intending to deprive said Thomas Vana permanently of the use and benefit of said property, in violation of Chapter 38, Section 16, (a) [sic], of the Illinois Revised Statutes 1963." Count II charged defendants with "the offense of criminal trespass to vehicle, in that they, knowingly and without authority entered a vehicle, to wit: an automobile, the property of Thomas Vana, and without the consent of said Thomas Vana, in violation of Chapter 38, Section 21-2, of the Illinois Revised Statutes 1963."
The testimony for the State shows that an automobile belonging to Thomas Vana was stolen on the evening of May 2, 1965. He made an auto theft report at about 9:45 p.m. Shortly thereafter, Police Officer Nissen, a member of the City of Northlake Police Department, observed a parked car with a man looking out the back window "He had a cloth over his face. As I pulled up behind the car, the car proceeded to drive away from me. I was driving a marked squad car." He put the red light on. By police radio, he reported to the Northlake police station that he was following a car "there were three subjects in the car and two of them masked." He continued pursuing the car at speeds which varied between 50 and 80 miles per hour. After an extended pursuit, participated in by the Melrose Park police, the car being pursued stopped against a curb, and Nissen fired four shots into the car. Nissen ran over to the side of the car and informed the parties they were under arrest. As he opened the door of the car, Torello fell from the driver's seat.
Vana testified that he did not know D'Argento, Torello nor LaJoy, nor did he give them authority to take custody of his car.
The only witness for the defense was D'Argento, who testified that he had stolen Vana's car without the knowledge of either Torello or LaJoy. He was carrying a gun in his belt and put the gun under the passenger's seat. Later he met Torello and LaJoy, and he asked Torello to drive because he wanted to discuss business with LaJoy. While they were parked on a side street a police car pulled up and flashed a light. D'Argento told Torello to take off and get going because it was a stolen car, and if he (D'Argento) was arrested, he would lose his appeal bond (for a federal offense) and would have to go to jail.
D'Argento further testified that while he was in the car, no one had hoods over their heads nor was there any cloth covering on anyone's face. No one threw anything out of the automobile during the chase. "At first Torello did not want to go, then I reached down and got my gun and told him it was a stolen car. I pulled it out like this and told him to get going. I had the gun in my hand." He had pleaded guilty "to this particular charge before Judge White" and received a sentence of ten years.
Defendant Torello was found guilty in two separate jury verdicts of theft and of criminal trespass to vehicle, and the court entered judgment on both verdicts.
Considered first is defendant's contention that Count I fails to charge a crime. Count I was the "theft" charge. After relating the essential elements of the crime of theft, Count I included "Chapter 38, Section 16(a), of the Illinois Revised Statutes 1963." Before the commencement of the trial, the court denied defendant's motion to dismiss the indictment because there was no section 16 (a) in the Criminal Code of Illinois. Leave was granted to the State to insert "`dash 1,' after the 16," so that after amendment the section alleged to be violated was designated as "Section 16-1(a)" instead of "Section 16(a)."
We find no merit in defendant's contention as to Count I. In this case the incomplete numerical designation of the section violated was a formal defect which could be corrected under the provisions of section 111-5 (c 38), entitled "Formal Defects in a Charge." Defendant was not prejudiced by the section number amendment because Count I alleged all of the essential elements of the offense of theft, as stated in section 16-1(a), and "so far particularize[d] the offense" so that defendant was apprised with reasonable certainty of the precise offense with which he was charged. See People v. Gold, 8 Ill.2d 510');">38 Ill.2d 510, 516, 232 N.E.2d 702 (1967); People v. Hall, 55 Ill. App.2d 255, 204 N.E.2d 473 (1964).
Considered next is defendant's contention that the only real issue in this case as to him was whether he had knowledge that the Ford was stolen "That, and that alone, was all the jury was to decide. That issue was obscured to the point of obliteration by the State's misconduct in the introduction of the prejudicial evidence."
Prior to the trial the defense was given a list of physical evidence that the State intended to introduce. On the list were three pistols and two cloth masks. After a hearing about the propriety of the intended proof, the court ruled that "even though they may be evidence of another crime, if ...