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People v. Broverman

APRIL 11, 1972.




APPEAL from the Circuit Court of Christian County; the Hon. WILLIAM H. CHAMBERLAIN, Judge, presiding.


This is an appeal from the judgment of the trial court of Christian County finding defendant-appellant, a practicing attorney in Taylorville, Illinois, guilty of the crimes of forgery and theft and sentencing him to one to three years in the penitentiary in one case and one to five in another, sentences to be served concurrently.

Defendant represented Mrs. Gertrude Metzger in a transaction in which she was to receive in settlement $3000, of which amount defendant was to receive one-third by prior agreement. A check payable to Mrs. Metzger in the amount of $2500 was delivered to defendant with no endorsements, and a $500 check was made payable to Mrs. Metzger to be delivered at a later date on the fulfillment of certain conditions. Within a few hours after receiving the $2500 check, defendant delivered it to a friend with two endorsements upon it; that of payee and his own. The friend then endorsed and cashed the check at a local bank and delivered the proceeds to the defendant. Mrs. Metzger testified that she did not endorse the check and never had the check in her possession. Upon her receiving the $500 check she became aware of the transaction and defendant's firm paid Mrs. Metzger $800. The court found defendant guilty of theft to the extent of $700.

In another case, defendant instructed his secretary to notarize a note for a loan and subsequently delivered the note to a credit union office bearing, in addition to his signature, the signatures of two sureties, both of such latter signatures being forgeries according to expert testimony.

Defendant seeks a reversal of the conviction on the grounds that the indictments were fatally defective, that the State failed to prove beyond a reasonable doubt any of the charges including venue, that defendant was prejudiced by a reference to his failure to testify, and that the trial court was too severe in its sentence.

• 1 The indictments here meet the requirements of adequately apprising the defendant of the charges against him and are adequately descriptive and self-limiting to prevent defendant from again being placed in jeopardy for the same offenses. Omission of the word "knowingly" when the words "knowing said document to have been altered" and "with the intent" were included was not fatal. Similarly, the deletion of "delivered" from an indictment which originally charged the defendant with having "knowingly made, possessed, issued and delivered" a certain promissory note on which he had forged two signatures was in no way harmful to defendant. People ex rel. Miller v. Pate, 42 Ill.2d 283, 246 N.E.2d 225.

• 2 After reviewing the record, we find that there was sufficient evidence to prove the defendant guilty of the crimes charged beyond all reasonable doubt.

• 3 At the worst, there could be inferred a criticism of the defendant for not taking the witness stand in a remark by the prosecutor, but defendant's objection thereto was sustained, the State's Attorney explained and withdrew the objected to remarks, there was no jury, and the court clearly stated that it disregarded the remarks and any criticism of defendant in this aspect.

This leaves us the difficult question of whether probation should have been granted.

Following the rationale of People v. McClendon, 130 Ill. App.2d 852, 265 N.E.2d 207, we again emphasize that the primary objective in the administration of the criminal laws of this State is the safety and security of the community. Therefore all should be interested in pursuing that course of action which is most likely to accomplish that end. In pursuit of that objective, the legislature of our State has enacted legislation providing that a person convicted of any offense except a capital offense, the sale of narcotics, or rape, may be admitted to probation when it appears the defendant is not likely to commit another offense, the public interest does not require that the defendant receive the penalty provided for the offense and the rehabilitation of the defendant does not require that he or she receive the penalty provided by law for the offense. (Ill. Rev. Stat. 1967, ch. 38, par. 117-1.) Probation is more than a merciful act by the court in cases where there are mitigating circumstances; it is also an affirmative correctional tool used because it offers the most future protection to the public.

A thoughtful discussion of the reasoning behind probation is contained in the Introduction to the Standards Relating to Probation promulgated by the Advisory Committee of the American Bar Association on Sentencing and Review:

"The basic idea underlying a sentence to probate is very simple. Sentencing is in large part concerned with avoiding future crimes by helping the defendant learn to live productively in the community which he has offended against. Probation proceeds on the theory that the best way to pursue this goal is to orient the criminal sanction toward the community setting in those cases where it is compatible with the other objectives of sentencing. Other things being equal, the odds are that a given defendant will learn how to live successfully in the general community if he is dealt with in that community rather than shipped off to the artificial and atypical environment of an institution of confinement. Banishment from society, in a word, is not the way to integrate someone into society. Yet imprisonment involves just such banishment — albeit for a temporary sojourn in most cases.

By the same token, however, it is to say that probation is a good bit more than the `matter of grace' or `leniency' which characterizes the philosophy of the general public and of many judges and legislatures on the subject. Probation is an affirmative correctional tool, a tool which is used not because it is of maximum benefit to the defendant (though, of course, this is an important side product), but because it is of maximum benefit to the society which is sought to be served by the sentencing of criminals. The automatic response of many in the criminal justice system that imprisonment is the best sentence for crime unless particular reasons exist for `mitigating' the sentence is not a sound starting point in the framing of criminal sanctions. The premise of this report is that quite the opposite ought to be the case — that the automatic response in a sentencing situation ought to be probation, unless particular aggravating factors emerged in the case at hand. At least if such aggravating factors cannot be advanced as the basis for a more repressive sentence, probation offers more hope than a sentence to prison that the defendant will not become part of the depressing cycle which makes the gates of our prisons resemble a revolving door rather than a barrier to crime."

The Standards Relating to Probation recommended by the Advisory Committee of the American Bar Association on ...

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