APPEAL from the Circuit Court of Cook County; the Hon. JOHN J.
MORAN, Judge, presiding.
MR. JUSTICE HAYES DELIVERED THE OPINION OF THE COURT:
Defendant was charged with the offense of petty theft under section 16-1(a)(1) of the Criminal Code of 1961. (Ill. Rev. Stat. (1971), ch. 38, sec. 16-1(a)(1).) After a bench trial, he was found guilty and fined $100. Defendant paid the fine and now appeals.
Defendant raises three issues on appeal. The first is whether the trial court erred in denying his motion for a directed finding at the close of the State's case-in-chief. The second is whether the State proved defendant guilty beyond a reasonable doubt. The third is whether he was deprived of his right to a hearing in mitigation of sentence and is, therefore, entitled to a new trial.
Two witnesses testified for the State. The first witness was one Craig Stevens, the credit manager of Musicraft, a hi-fi retail store at 48 E. Oak Street in Chicago. The witness testified that when defendant came into the store, he was carrying a shopping bag folded up under his arm. Defendant went upstairs to the second floor and came back down. The shopping bag was now in defendant's hand. The bag was bulging.
At that point, the witness' attention was momentarily distracted by his having to attend to a business detail in the store. About this time one of the other sales people wrote up an order for a sale of tapes and other items to another customer. The salesman went to the cash register to ring up the sale, returned, gave the customer his receipt, went back to put the merchandise in a bag, and discovered the merchandise was missing.
The witness testified that he looked to see if defendant was still in the store. He was, and the bag he was carrying was fuller. The witness testified that defendant saw the witness watching him, and defendant put the bag on the floor. Defendant started pacing back and forth in the store and walked toward the front of the store.
Then someone called the witness, at which time defendant started for the front door. The witness grabbed the bag of merchandise from the floor, put it on a counter, and started after defendant. Defendant ran down the street, and the witness could not keep up with him.
The merchandise in the bag consisted of tapes, some cables, and a four channel decoder. The decoder had been a display item on the second floor. The total value of the merchandise was less than $150. No report of the incident was made to the police because the store still had the merchandise. The next day, defendant returned to the store with a police officer.
On cross-examination, the witness identified the bag defendant carried as a Blum's Vogue bag, and stated that he did not see defendant place any merchandise in the bag nor take any merchandise from the store. The witness did not physically take the bag from defendant. There was a receipt for tapes hanging out of the bag.
The arresting officer testified that, on the day after the incident, he met defendant on the street in front of the Musicraft Store pursuant to a telephone conversation defendant had had with the police that morning. Defendant told the officer that he had left some merchandise in the store the night before and was afraid to go back and claim it. He wanted the police to go into the store with him.
When defendant entered the store accompanied by the officer-witness, Mr. Stevens identified defendant as the person he had chased from the store the evening before. The officer placed defendant under arrest and advised him of his rights.
On cross-examination, the officer testified that, when defendant came up to him on the street that morning, defendant tried to explain what had happened, but the officer did not understand him fully.
At the conclusion of the officer's testimony, the State rested its case, whereupon defendant's attorney moved for a directed finding. The basis for the motion was that the State had failed to prove, beyond a reasonable doubt, that defendant intended permanently to deprive the store of the use of the merchandise. The motion was denied.
Defendant then testified in his own behalf. He testified that he had been in the store earlier on the day of the incident, during his lunch hour, at which time he had purchased four or five tapes and a magazine. He returned to work about 1:30 P.M. At about 5:00 P.M. defendant went back to the store. There was a sale in the store, and he had not had enough money with him during his noontime visit to take advantage of the sale. He returned to the store to ...