APPEAL from the Circuit Court of Kane County; the Hon. JOHN S.
PETERSEN, Judge, presiding.
MR. PRESIDING JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
The defendant was charged with possession of a stolen motor vehicle and under a separate indictment was charged with theft of a motor boat and boat trailer. The two indictments were consolidated for trial and the jury found the defendant guilty of theft of the boat and trailer, and guilty of possession of a stolen motor vehicle. Defendant applied for and was granted probation for a period of three years. He was ordered to make restitution as a condition of his probation. Defendant appeals.
On appeal he contends that he was improperly denied a preliminary hearing; that the court should not have instructed the jury on the presumption arising from unexplained possession of recently stolen property; that the court instructed the jury on theft in terms at variance with the indictments; that the instruction on the Ill. Rev. Stat. 1969, ch. 95 1/2, sec. 4-103(a), charge erroneously failed to allege any mental state; and that the court erroneously gave a lengthy hung jury instruction, Federal Instruction 7.07, as part of the original series of instructions.
Defendant was arrested at Pottawatomie Park, St. Charles, Illinois, where he was loading the boat on a boat trailer, in turn attached to the motor vehicle. Investigation disclosed that the 1970 green Chevrolet was stolen from Brigance Chevrolet in Oak Park, on May 4, 1970. The license plates on the trailer were also stolen and another set of stolen license plates were found in the trunk of the automobile. The boat and trailer were stolen on June 10, 1971, in Rolling Meadows. Otto Katek, the owner of the boat (a distinctive Turbo jet bright red fibre glass) in question, observed his stolen boat being driven down the Fox river. He, in turn, contacted the St. Charles police which culminated in the aforesaid arrest of the defendant and the recovery of the stolen boat, boat trailer, and stolen motor vehicle. It further appears that one of the identifying numbers on the boat itself had been altered.
We consider first the indictment and conviction for the possession of the stolen motor vehicle under Ill. Rev. Stat. 1969, ch. 95 1/2, sec. 4-103 (a):
"It is a violation of this Chapter for:
(a) A person not entitled to the possession of a motor vehicle or other vehicle to receive, possess, conceal, sell or dispose of it, knowing it to have been stolen or converted; * * *."
• 1 The defendant upon his apprehension made a statement that he had borrowed the stolen car from "Chuck" and that "Chuck" had his car. The defendant himself did not testify, but his wife testified as to the possession of the car in question. The facts indicate that the car was stolen from the Brigance Chevrolet agency in May, 1970. The defendant's wife testified they obtained possession of the car from "Chuck" who ran a Shell filling station at the corner of Harlem and North Avenues in Oak Park. She testified that she had driven the car about twelve times and that her husband used it on occasion. The State produced "Chuck" Barkoozis who testified that he had run the Shell station at this location for seven years, that he had never loaned the defendant the car in question, that he had never borrowed the defendant's car, that he knew the defendant, and that the defendant had been in his station with a car subsequently identified as the stolen vehicle. Upon re-direct examination, Mrs. Spera testified that there were two "Chucks." It can thus be seen that the testimony offered for the unexplained possession of the stolen motor vehicle is tenuous. The jury was more than amply justified in finding that the defendant was guilty of the possession of this motor vehicle under the above cited statutory provision.
• 2, 3 Turning then to the second indictment which in fact was a theft indictment under Ill. Rev. Stat. 1969, ch. 38, sec. 16-1(a), the State contended at the trial that the defendant was charged with the theft of the boat and trailer. Instructions to that effect were given and the jury found him guilty. The boat and trailer were found in the possession of the defendant nine days after they had been stolen. The defendant also stated to the police at the time of his apprehension that he bought the boat and trailer from a fellow named "Chuck." This is apparently a purported second "Chuck." In his statement, the defendant stated that he met the second "Chuck" at Belmont Harbor who said he was a representative of Maypole Motors in Chicago. Subsequently, the defendant produced an alleged bill of sale from Maypole Motors date June 7th, 1971, covering an alleged sale of a super jet boat and reflected a purchase price of $6820. It is to be noted that the boat and trailer in question were stolen two days later on June 9, 1971. The State produced the manager of Maypole Motors who testified that this bill of sale was never issued by Maypole Motors, and the name thereon was not an employee of their company. It is also to be noted that the identifying numbers on the boat itself had been altered. Defendant testified he entered into a deal with "Chuck" to pay him $1500 and give him a Snowmobile for the boat and trailer. No other evidence of this purported transaction was forthcoming. The law in Illinois has long been that exclusive and unexplained possession of recently stolen property is evidence of theft. In People v. Hayes (1971), 133 Ill. App.2d 885, 272 N.E.2d 423, the court stated that they had held in People v. Hyde (1968), 97 Ill. App.2d 43, 239 N.E.2d 466, that evidence of recent, exclusive and unexplained possession of stolen goods is evidence of theft, and was sufficient to convict. They re-affirmed that case and held that under the circumstances present in Hayes the evidence was sufficient to support the jury verdict of guilty. In People v. Litberg (1952), 413 Ill. 132, 108 N.E.2d 468, the Supreme Court held that the trial judge in weighing the evidence was warranted in finding that the explanation of possession of the stolen property was unsatisfactory. Likewise, in People v. Reynolds (1963), 27 Ill.2d 518, the court held that the recent, exclusive and unexplained possession of stolen property by an accused, raises the inference of guilt which may justify a finding of guilty where the explanation was not satisfactory as to the possession of stolen property.
• 4, 5 Defendant next contends that Sec. 7, Art. I, of the Illinois Constitution provides that he shall be afforded a preliminary hearing prior to indictment by the grand jury. The pertinent part of the constitutional provision reads as follows:
"No person shall be held to answer for a crime punishable by death or by imprisonment in the penitentiary unless either the initial charge has been brought by indictment of a grand jury or the person has been given a prompt preliminary hearing to establish probable cause."
It is to be noted that this constitutional provision is in the alternative using the word "or." It must be given its common accepted usage, i.e., a defendant may be charged by indictment "or" given a prompt preliminary hearing. In the case before us, defendant was indicted one day before the date of the preliminary hearing.
• 6, 7 Defendant made no motion for preliminary hearing and since the instant charges were initiated by two complaints on June 20, 1971, we are of the opinion that the new Constitution which came into effect on July 1, 1971, would have no effect on proceedings already in motion. However, the Supreme Court has now ruled on this. In People v. Kent (1972), Docket No. 44864, the court held that the 1970 Constitution, Sec. 7 of Art. I, does not bar subsequent indictment by the grand jury where no probable cause was found in the preliminary hearing. In interpreting this constitutional provision the court stated:
"As we read the provision before us, it appears to be designed to insure that the existence of probable cause will be determined promptly ...