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People v. Ferrara

AUGUST 22, 1969.




Appeal from the Circuit Court of DuPage County, Eighteenth Judicial Circuit; the Hon. WILLIAM ATTEN, Judge, presiding. Affirmed. MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT.

Defendant appeals from a judgment of conviction, after a jury trial, under a two-count indictment of theft of a value of property under $150 *fn1 in count I and the same theft, "after having been convicted of armed robbery on June 22nd, 1943," *fn2 in count II. The jury found the defendant guilty under both charges, but he was given a single sentence of 2 to 4 years in the penitentiary.

The appeal was taken to the Supreme Court which transferred it to this Court, noting,

Defendant was convicted of theft under an indictment which charged that he had previously been convicted of armed robbery. He argues that armed robbery is not a type of theft within the meaning of Section 16-1 of the Criminal Code. The argument does not present a constitutional issue.

It is further asserted that he was deprived of a fair trial by reason of the fact that evidence of the former conviction was introduced. No constitutional question is presented. (See People v. Ostrand, 35 Ill.2d 520, 529).

Defendant contends that robbery is not a "theft" within the meaning of that term in section 16-1 (supra); that he was deprived of a fair trial by reason of the fact that the inclusion of the remote prior conviction was solely for the purpose of prejudicing defendant on the recent charge. (To the extent that these arguments are claimed to assume substantial constitutional proportions, they have been disposed of by the Supreme Court transfer order.) Defendant also contends that he did not receive a fair trial because of an accumulation of trial errors; that the jury was improperly instructed; and that he was not proven guilty beyond a reasonable doubt.

Edward Novy, an assistant security manager for the E.J. Korvette Department Store in Elmhurst, testified that on November 29th, 1966, some time after 1:00 p.m. he saw the defendant in the men's department going into the coat department. Defendant took off his coat, laid it across the coat rack and tried on several coats. The coat that he was first wearing was a black three-quarter length coat. The last one he took from the rack and put on was a car coat length. He then put his own black coat over it. He looked from left to right, at which time he proceeded out of the store without making payment. The witness went out of the store after defendant and approached Ferrara in the parking lot. Novy asked defendant if he had a receipt for the coat and defendant told him that the coat had belonged to him. Novy then told defendant what he had seen take place in the store and testified that defendant responded "Well, all right, I did take it."

Novy further testified that he asked defendant to come back inside the store, and that defendant asked him if there was any way this could be taken care of without going through all the trouble. When defendant was asked what he meant by this he said he would see that we got $100 for it, although he didn't have the money on him at the time, but would get it. The witness refused, at which time defendant said, "Everyone has their price, what's yours?" Defendant was advised that he would either have to come back into the store or the police would be called to pick him up in the parking lot. Ferrara accompanied the witness back into the store where the police were called and arrested the defendant.

The witness then identified State's Exhibit No. 1 as the coat taken by defendant and related the procedure by which it was marked and placed in the evidence locker of the store. He had left the employ of Korvette in July of 1967 and had last seen the coat in November of 1966. Novy could not be positive of his own personal knowledge that the coat and ticket were the same items taken from the defendant, as there were no identifying marks placed on the jacket itself.

Kenneth Davis, a security agent for Korvette, testified that he was with Mr. Novy on November 29th, 1966. He saw the defendant come into the men's department, go over to a rack of men's coats, suede coats, remove his own coat, try on several coats and place one on his person. Defendant then placed his own coat over it and left the store without making payment. The witness, with Mr. Novy, followed defendant out of the store and into the parking lot. He testified that Mr. Novy identified himself and asked Ferrara if he had a receipt for the suede jacket that he had on and that Ferrara said no.

The defendant denied that he had taken the jacket, first saying it was his own jacket and then after being told that both Novy and Davis had observed him the whole time in the store, admitted that he had just gotten in from California, that it was cold and he didn't have much money on him and he needed a jacket, so he stopped in and picked one up. Davis corroborated Novy's testimony as to the offer of the bribe.

Davis identified the suede jacket and a tag which he said defendant removed from the pocket of the jacket and threw on the ground in the parking lot. The witness also testified that there were no identifying marks on the coat and he could not personally know that it was kept in the security locker at all times.

Both witnesses testified that this was the only men's jacket or coat recovered on November 29th, 1966.

There was testimony that the jacket was put into the security locker in a Korvette bag which was marked as State's Exhibit No. 2 for identification, and a written memorandum prepared by Mr. Raymond, the security ...

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