APPEAL from the Circuit Court of Cook County; the Hon. JAMES
M. BAILEY, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 2, 1974.
Defendant was indicted for three counts of theft, and a trial was had before a jury. His motion for a directed verdict of not guilty as to Counts I and II was granted at the close of the State's case. The jury returned a verdict of guilty on Count III, in which defendant was charged with theft by deception of more than $150 (Ill. Rev. Stat. 1967, ch. 38, par. 16-1(b) (1)). He was sentenced to a term of 2 to 5 years in the penitentiary. Defendant appeals.
Defendant contends that the trial court erred in denying in part his motion for a bill of particulars; that the trial court erred in refusing to strike the testimony of a witness who allegedly testified in indirect violation of an order excluding witnesses; and that the evidence was insufficient to sustain his conviction. Defendant further contends that the closing argument of the prosecutor was prejudicial and that the trial court erred in refusing two of defendant's tendered instructions. The pertinent facts are hereinafter set forth.
The third count of the indictment, upon which defendant was convicted, charged that from July 18, 1967, until September 21, 1967, he committed the offense of theft in that he knowingly obtained by deception control over three checks of the total value of more than $150, the property of Michael Michalek and Loretta Hedrick, doing business under the name and style of Valiant Insurance Agency, a partnership, intending to deprive them permanently of the use and benefit of the property.
During trial Michael Michalek testified that he had been in insurance broker for 14 years and that Valiant Insurance Agency was a partnership consisting of himself and his wife, Loretta Hedrick. In 1966 he placed insurance policies through the defendant who was then an agent for Public Mutual Fire Insurance Company, and made premium payments for these policies to defendant's agency, Automobile Insurance Markets, 64 Old Orchard Road, Skokie, Illinois. He further testified that from April 1967 until October 1967 he ordered policies by telephone from Automobile Insurance Markets and that 99 percent of the policies he received in the mail were of the United Firemen's Insurance Company, a Delaware corporation. After receiving the policies the witness sent checks covering the premium payments to the defendant's agency. He identified three checks in the amounts of $2,010.40, $473.20 and $555.20, made payable to the order of Automobile Insurance Markets and drawn on the Valiant Insurance Agency, premium fund trust account, in payment for the United Firemen's policies issued to nine insureds, including one Evelyn Buchner and one Jose Campos. The premium fund trust account consisted of the premium payments received from customers and other brokers after deducting the commissions of the Valiant Insurance Agency. On cross-examination Michalek stated that the monies contained in the premium fund trust account did not in any way belong to him personally.
Jack Clark Fisher, assistant supervisor of the License Division of the Illinois State Department of Insurance, testified that the license records indicated that defendant was a general insurance broker in Illinois during the years 1965, 1966 and 1967; that he resided at 10034 LaCrosse, Skokie, Illinois, and that he maintained a business address at 64 Old Orchard Road, Skokie.
Robert C. Chapman, an investigator for the Illinois State Department of Insurance, testified that he met with the defendant on August 24, 1967 at the latter's office in Skokie. At the time, Chapman was investigating complaints that had been filed with his department against the defendant. The defendant informed him that he was the agent for and owner of Automobile Insurance Markets and that he represented the United Firemen's Insurance Company whose home office was in New York City. The defendant further told him that the United Firemen's policies were printed in New York City by a Mr. Cameron or a Mr. Murphy of United Firemen's, but that the United Firemen's policies in his possession came from a local broker named Bernard Becker.
Marie Shultie testified that she was employed by the Corporate Division of the State of Delaware, and that after a search of the division's files she could find no record of a United Firemen's Insurance Company ever having been chartered by the State of Delaware.
Margaret Dillon, chief of the Corporate Affairs Bureau of the New York State Insurance Department, testified that at no time was a United Firemen's Insurance Company of Delaware ever licensed in the State of New York.
Donald Eugene Weber, assistant supervisor of the Corporate Property and Liability Division of the Illinois State Department of Insurance, testified that there was no company named United Firemen's Insurance Company, a Delaware corporation, now or ever in the past, licensed in the State of Illinois. On cross-examination, the witness stated that prior to 1953 there were two United Firemen's Insurance Companies, one a Pennsylvania corporation and one a New York corporation, licensed in Illinois. The Pennsylvania corporation then merged into the New York corporation which was licensed in Illinois until 1957.
Kenneth Wayne Smith, rate examiner for the Illinois State Department of Insurance, testified that a search he conducted revealed that there were no policies of a United Firemen's Insurance Company, a Delaware corporation, in his department files, nor was there any authorization card for that company.
Bernard Becker testified that he was a general insurance broker and that in 1967 he placed insurance through the defendant with the United Firemen's Insurance Company. He also testified that he never had any United Firemen's policies printed and had never given the defendant any United Firemen's policies.
David Silk testified that during 1967 he was a general insurance broker doing business as the Friendly Insurance Agency, and that he placed insurance for a company owned by Evelyn Buchner through the Valiant Insurance Agency. Evelyn Buchner testified that she owned a business called Evelyn's Freezer Fresh and that in 1967 she insured the trucks of the business through an insurance agent named David Silk. She further testified that the policies which she received were from a company known as United Firemen's Insurance Company.
Irene Markewych testified that she and her husband operated an insurance brokerage under the name of All Drivers Insurance, and that in 1967 she placed an insurance policy for one Jose Campos through the Valiant Insurance Agency. She further testified that the policy received by Campos was that of a United ...