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People v. Drake

JUNE 17, 1974.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

GEORGE DRAKE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. CHESTER J. STRZALKA, Judge, presiding.

MR. JUSTICE BURKE DELIVERED THE OPINION OF THE COURT:

Rehearing denied July 17, 1974.

George Drake, defendant, was charged with the offense of theft of certain tires allegedly owned by Fast Motor Service, Inc., in violation of section 16-1(a)(1) of the Criminal Code. (Ill. Rev. Stat. 1971, ch. 38, par. 16-1.) After a bench trial, the defendant was found guilty and placed on probation for 1 year.

On appeal, the defendant contends that the State failed to prove beyond a reasonable doubt that the tires were owned by Fast Motor Service, Inc.; that the trial court erred in admitting certain evidence introduced by the State and in rejecting certain evidence offered by the defendant; that the State failed to prove beyond a reasonable doubt that the defendant had possession or control over the tires allegedly owned by Fast Motor Service, Inc.; and that the trial court abused its discretion in not granting the defendant a new trial on the basis of alleged newly discovered evidence.

The facts are as follows: Wesley Clark, testifying for the State, said that on December 20, 1972, he was a director and the purchasing agent for Fast Motor Service, Inc. (hereinafter designated as F.M.S.), and on that date, he went to the Diesel Hydraulic Company, 1612 South Prairie Avenue, Chicago, to inquire concerning a tractor that F.M.S. was having repaired. He testified he noticed another tractor owned by the defendant and leased by him to F.M.S. was also there for repair; that F.M.S. had, in the past, been beset by thefts of tires from its vehicles; and that he inspected the tires on defendant's tractor and discovered that three of the tires on defendant's tractor were marked with the legends "FMS 674," "FMS 1497" and "FMS 1501," respectively. Mr. Clark said that when F.M.S. purchased tires for its vehicles it branded each one with the mark "FMS," followed by a number, one number to a tire, by means of a tire branding iron; that he called the F.M.S. office and was told that the numbers "674," "1497" and "1501" were listed in the company's records as belonging to F.M.S.; that he then called the Chicago Police Department and pointed out the tires of F.M.S. on the defendant's tractor; and that the police put that fact in their report.

Mr. Clark stated he contacted the defendant, who came to his office the following Saturday; that Mr. Clark asked defendant where he got the tires; and that the defendant stated that he had purchased the tires, but refused to say where he purchased them nor did he produce a receipt for their purchase. Mr. Clark also stated he was the only one who could authorize the placement of tires on tractors leased by F.M.S.; and that he never authorized the placement of F.M.S. tires on defendant's tractor by the defendant or anyone else.

Mr. Clark further stated that 3 or 4 months later, about 1 week before trial, he went to defendant's house but did not find any F.M.S. tires on the tractor at that time. Mr. Clark said the value of the tires was less than $150.

Police Officer John Bright of the Chicago Police Department testified that he and his partner responded to Mr. Clark's call from Diesel Hydraulic on September 20, 1972; that he inspected the tires Mr. Clark told him belonged to F.M.S.; and that he completed a report in which his observations of the F.M.S. markings and numbers on the tires, and Mr. Clark's claims concerning the rightful owner of those tires, were noted. Officer Bright marked at the top of the report that the claim was "non-founded." He said the reason for so stating was that Mr. Clark had only made an allegation that the tires rightfully belonged to F.M.S. and at that particular time he had no proof that F.M.S. was the owner. Officer Bright also stated that the reason the report was labeled "non-founded" was that F.M.S. was located in Hodgkins, Illinois, which is outside the jurisdictional limits of the Chicago Police Department.

Defendant testified that the tires which he had been accused of stealing had actually been purchased by him, along with other tires, on two separate occasions at two separate locations. He produced a paper dated April 12, 1972, purporting to be a receipt for four tires purchased in Elmhurst, Ohio, and a paper dated July 23, 1972, purporting to be a receipt for five tires purchased in Knoxville, Tennessee. On cross-examination, defendant stated that he alone drove his tractor; that he did not know the tires on his tractor had an F.M.S. brand on them; that no one else had authority to put tires on the tractor; that he had been asked by F.M.S. to produce any receipts or other proof of purchase by him for the tires; and that he had made an appointment to see Frederick Stevens, the F.M.S. General Manager, approximately 1 month after receiving the F.M.S. communication, but did not see him until sometime later at a State Labor Board meeting. The defendant further testified that he inspected the tires at the time he purchased them; that there were no brand numbers on the tires; and that he is familiar with the F.M.S. brand.

After the defendant was found guilty he filed a motion for a new trial on the basis of newly discovered evidence. The record does not contain the motion for a new trial. However, a hearing on the motion for a new trial was held on April 10, 1973. At the hearing, Police Officer Herman Vanderwood of the South Holland Police Department testified that on January 30, 1973, in response to a request of him by defendant, he made an investigation at a Union 76 truck stop on the Calumet Expressway; that the investigation consisted of the inspection of an F.M.S. tractor, parked at the truck stop; and that he found that two tires on the tractor had markings "FMS 1497" and "FMS 1501," respectively, on them.

The defendant testified at the April 10, 1973, hearing that on March 18, 1973, he found the third tire he was accused of taking on an F.M.S. tractor in the F.M.S. parking lot at Hodgkins, Illinois; that the tire had brand number "FMS 674"; and that he made a report of this investigation to Police Officer William Degno of the Hodgkins Police Department.

The trial court denied the motion for a new trial and placed the defendant on 1-year probation.

The defendant argues that the State failed to prove that the tires on the defendant's tractor belonged to F.M.S.

• 1 In a prosecution for theft, ownership or some sort of superior possessory interest in one other than the defendant is an essential element of the offense. People ...


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