APPEAL from the Circuit Court of Winnebago County; the Hon.
WILLIAM R. NASH, Judge, presiding.
MR. JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT:
Mr. PRESIDING JUSTICE T. MORAN, delivered the supplemental opinion of the court:
Defendant was sentenced to 1 year probation after a jury found him guilty of violating section 16-1(d)(1) of the theft statute (Ill. Rev. Stat. 1971, ch. 38, § 16-1(d)(1)) which states that a person commits theft when he knowingly:
"(d) Obtains control over stolen property knowing the property to have been stolen by another or under such circumstances as would reasonably induce him to believe that the property was stolen, and
(1) Intends to deprive the owner permanently of the use or benefit of the property; * * *."
The indictment, as drawn, recites that defendant:
"* * * committed the offense of Theft, in that he, knowingly obtained control over stolen property; (naming and describing certain snowmobiles) having a value exceeding One Hundred Fifty Dollars ($150.00), said property being the property of Arctic Enterprises, Inc., a corporation, under such circumstances that would reasonably induce him to believe that the property was stolen and thereby intending to deprive the said Arctic Enterprises, Inc., a corporation, permanently of the use or benefit of said property, in violation of Paragraph 16-1d, Chapter 38, * * *."
While many contentions of error have been raised, only one issue need here be addressed. The defendant does not attack section 16-1(d) per se as unconstitutional, but claims that he was denied due process of law by the manner in which the section was applied to him in the indictment; that by utilizing a partial verbiage of section (d), the indictment failed to charge him with the essential elements of the offense (or, stated differently, that the indictment should have included the phrase "knowing the property to have been stolen by another"). The State's position is that the fundamental elements of theft are present, i.e., that the defendant knowingly received stolen property and intended to permanently deprive the owner of its use or benefit.
Committee Comments (S.H.A. ch. 38, § 16-1) state:
"While the method by which unauthorized control is obtained or exerted is immaterial in subsection (a), and probably, in conjunction with one of the subsections (1), (2), or (3), would cover all forms of theft, the Committee felt that such extreme codification might be too concise, and possibly create some problems of application, in view of the large body of statutory material and offenses it is intended to replace. [Subsection (d) was] added, therefore, to cover specifically situations which, at first glance, might be considered not covered by subsection (a). Such situations include * * * receiving stolen property * * *."
Prior to 1967, section 16-1(d) read, "* * * obtains control over stolen property knowing the property to have been stolen by another * * *." Since actual knowledge is rarely susceptible of direct proof, case law developed the rule that guilty knowledge could be established by proof of circumstances which would induce belief, in a reasonable mind, that the property had been stolen (People v. Grodkiewicz, 16 Ill.2d 192, 197 (1959)). In 1967, the legislature codified this case law by adding to section 16-1(d), "* * * or under such circumstances as would reasonably induce him to believe that the property was stolen."
• 1 The nature of the crime here is receiving stolen property (theft). The essential elements of the crime as here charged are: (1) that the property has, in fact, been stolen by a person other than the one charged with having received it, (2) that the one charged with receiving it has actually received the property stolen or aided in concealing it, (3) that the receiver knew the property was stolen at the time of receiving it, and (4) that he received the property for his own gain or to prevent the owner from again possessing it. People v. Stewart, 20 Ill.2d 387, 392 (1960).
We are aware that by utilizing the language of section 16-1(a) in combination with any of the subsections (1), (2) or (3), an indictment validly charges "receiving stolen property". (People v. Marino, 44 Ill.2d 562, 576 (1970).) Under that section, only two elements need be charged and proved. In the instant case, however, the State did not elect to charge the defendant under section (a), rather chose section (d), but then employed only a portion of that section. By its election, it became necessary for the indictment to set forth all of the essential elements requisite to section (d).
We find that the verbiage of the 1967 amendment is insufficient to infer that the property was stolen by another, and that the amendment's language is intended merely as a restatement of the phrase, "knowing the property to have been stolen." Thus, under our reading of the statute, we conclude that essential element No. 2 is satisfied by the indictment's verbiage, "knowingly obtained control over stolen property"; element No. 3 is satisfied by the words, "under such circumstances as would reasonably induce him to believe the property was stolen"; and element No. 4 is satisfied by establishing that he was "intending to deprive [the owner] ...