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People v. Dell

OPINION FILED OCTOBER 2, 1972.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

RUTH DELL, APPELLEE AND CROSS APPELLANT.



APPEAL from the Circuit Court of Lake County: the Hon. LLOYD A. VAN DEUSEN, Judge, presiding.

MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:

The defendant, Ruth Dell, was convicted of theft and was sentenced to the State Reformatory for Women for a term of from 5 to 10 years. Her conviction was affirmed by the appellate court. (People v. Dell (1966), 77 Ill. App.2d 318.) On appeal, the appellate court refused to consider the issue of denial of a jury trial because it was not raised in the defendant's post-trial motions as required by the rule that issues not so raised will not be considered for the first time on review. People v. Irwin (1965), 32 Ill.2d 441, 443-444.

The defendant then filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Illinois, but that petition was dismissed because she had not exhausted her State remedies by seeking post-conviction relief. Thereupon the defendant filed a post-conviction petition and this is an appeal by the State from an order entered in the circuit court of Lake County, which vacated the judgment of conviction of the defendant, Ruth Dell, and granted her a new trial following a post-conviction hearing. The defendant has cross-appealed and contends that the circuit court erred in granting a new trial, and that it should have entered an order finding her guilty of a misdemeanor only. A brief summary of the facts is necessary to an understanding of the issues involved.

The defendant was indicted and tried before a jury for the offense of theft, "in that she knowingly obtained control over 129 pairs of trousers, having a value exceeding One Hundred Fifty ($150.00) Dollars * * *." During the trial, one of the owners of the salvage store from which the trousers allegedly had been stolen testified that, from his experience in purchasing over 7,000 pairs of trousers while in business, the value of the stolen trousers was $250. The defendant failed to rebut this testimony.

At the conclusion of the trial, three verdict sheets were presented to the jury in the following form:

"1. We, the jury, find the defendant, RUTH DELL, not guilty."

"2. We, the jury, find the defendant, RUTH DELL, guilty of Theft in manner and form as charged in the Indictment.

And we further find from the evidence the value of the property so stolen to be ____ dollars.

And we further find from the evidence that the said defendant is now about the age of ____ years."

"3. We, the jury, find the defendant, RUTH DELL, guilty of Theft, in manner and form as charged in the Indictment.

And we further find from the evidence that the said defendant is now about the age of ____ years."

The jury found the defendant guilty and returned verdict form No. 2. The value of the trousers appeared on the verdict as $250, and the defendant's age as 38. No instructions were submitted to or given by the court indicating that the jury might find the value of the trousers to be less than $150. Two instructions were given which stated that it was incumbent on the State to prove every material allegation of the indictment, and the indictment did allege that the trousers had a value in excess of $150.

The defendant's verified post-conviction petition alleged that the value of the merchandise in question was in dispute, and that the trial judge had submitted to the jury the forms of verdict with the value of the goods inserted, as well as the defendant's age. The defendant's trial counsel (not her attorney on appeal) testified that the defendant did not take the witness stand at her trial, and that there were neither stipulations nor evidence as to her age. Further, a stipulation was entered into between the State's Attorney and counsel for the defendant that if certain of the jurors were called to testify, they would say that when they received the verdict forms, the figures "$250.00" and "38" had been written on them.

When questioned by the court, the defendant's trial counsel stated that when the verdict forms were submitted to him the spaces for figures on them were blank, and that he did not agree to submit the verdict forms with the value and age filled in. He recalled ...


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