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People v. Debartolo

JANUARY 22, 1975.




APPEAL from the Circuit Court of Du Page County, the Hon. GEORGE W. UNVERZAGT, Judge, presiding.


Defendant was convicted of theft over $150 (Ill. Rev. Stat. 1973, ch. 38, par. 16-1(a)(1)) following a jury trial. He was sentenced to 2-5 years in the penitentiary. On appeal, defendant contends that he was not proven guilty beyond a reasonable doubt and that various trial errors require reversal. Nicholas DeBartolo, the defendant (together with one John Owen), were charged by indictment with the theft of 20 "Hood" brand tires, alleged to have a value of more than $150, from Zayre of Illinois, a corporation. Brandon LeRoy Page, a 16-year-old minor at the time of the crime, and who admitted that he participated in the theft, was the principal witness for the State.

Page testified that on February 18, 1970, he and DeBartolo drove in defendant's truck to the Zayre Automotive Center in Addison. The pickup truck had been fitted with wooden sides by the witness some 2 or 3 weeks prior to this time at defendant's direction. DeBartolo drove his vehicle into one of the six automotive stalls after someone opened a service door. John Owen, a mechanic at Zayre's, was working in the bay area of the automotive center. There were no other people in the area except for a woman employee from the store whom DeBartolo asked whether she could sell him a tape. While DeBartolo went to Zayre's merchandise section, which was separated from the automotive center by a wall, with the employee, Page testified, he and Owen loaded 28 tires onto the truck. Page said that Owen told him to put the tires in the truck and to put the tarpaulin in the back of the truck over them, which he did, and that he and Owen had no other conversation in the approximately 10 minutes that it took to complete the loading. That DeBartolo then returned with some tape he had purchased in the store and asked Page to collect his change and receipt.

The witness said DeBartolo was pretending that he was getting an oil change and that he thought that Owen placed a gallon and a quart of oil on the front seat of the truck. DeBartolo then left the area. Page remained with Owen for approximately 15 minutes more while Owen put his tools away since it was close to 6 o'clock in the evening. The witness testified that he then accompanied Owen to "Murph's Gas Station" where he saw defendant's truck. He said he also saw defendant give Owen about $300 at the station. He said that he did not hear any conversation at the time of the exchange of the money.

Page further testified that on the following Sunday he met the defendant at "Murph's Gas Station"; that they then loaded the tires on a "U Haul" trailer and drove to "Maxwell Street" where they unloaded the tires and some tools they had brought and began selling the tires and tools on the street. He said that he and defendant also sold tires at the same place the following Sunday accompanied by a friend, who did not appear or testify.

There was evidence that Page had been convicted previously of a burglary in which the defendant DeBartolo was the victim; that Page was on probation for that offense both when he participated in the offense here involved and when he testified; and that Page was neither being prosecuted for his participation in this offense nor had any action been taken to revoke his burglary probation. Page conceded on cross-examination that a police officer drove him to court each day during his trial testimony but claimed he was promised nothing in exchange for his testimony. Page also admitted that he was angry at defendant when he committed the crime against him but "didn't know" whether he was still angry at him when he testified. There was evidence that Page had been hired as an employee of Linemaster by defendant who was a supervisor of the firm and that he had been recently discharged. Page was not certain on cross-examination of the exact times he arrived and left the Zayre store, but said they were approximate times.

Sue Young testified for the defendant. She was the secretary at the Linemaster Tool Company where DeBartolo worked. She identified defendant's time card for February 18, 1970, which showed that although the normal working hours were from 9 o'clock to 5:30 or 6 o'clock, defendant had worked on February 18 from 10:30 A.M. until 9 P.M. She said that she recalled the defendant did not leave the Linemaster building between 5 and 6:30 on February 17 or 18, because she was asked to join defendant and Mr. Linemaster in a pizza for supper on those dates. A receipt for a pizza on February 18 was admitted into evidence.

On cross-examination the witness admitted that the defendant wrote the time in on the time card which was accepted for pay purposes, since the company had no time clock. She admitted that she did not know whether the defendant and Linemaster had dinner together but assumed that because Linemaster could not have eaten a large pizza ordered by himself. The witness claimed that her acquaintance with defendant was only in the course of employment. In rebuttal, however, a witness testified to seeing defendant's car in her driveway on many occasions.

Defendant argues that the testimony of an accomplice is to be examined with extreme caution (People v. Johnson (1925), 317 Ill. 430, 434-435), noting that the accomplice Page had motives of revenge and self-protection, and that an alibi defense must be given considerable weight when, as here, the accomplice's testimony is the only contradictory evidence. (People v. Hermens (1955), 5 Ill.2d 277, 285-286.) Defendant contends also that the testimony of Page is improbable because it is unlikely that there would be no other witnesses in the Zayre Automotive Center in the time period involved, that there would be no conversations between the participants, and that the allegedly stolen merchandise would thereafter be sold on a crowded city street.

• 1 The State responds that defendant's argument is directed to questions of credibility which were for the jury, properly instructed. We agree. While the testimony of an accomplice is subject to careful scrutiny, it is sufficient to convict if it satisfies the trier of fact beyond a reasonable doubt. (People v. George (1971), 49 Ill.2d 372, 382.) The fact that the accomplice is a self-confessed criminal and has expectation of leniency is a factor which the jury may take into account in weighing credibility but does not of itself raise a reasonable doubt of guilt. (People v. George, 49 Ill.2d 372, 382; People v. Coleman (1971), 49 Ill.2d 565, 573.) The testimony of the accomplice in this record was not substantially impeached, and the so-called improbabilities were matters for the jury to weigh.

• 2 The case of People v. Hermens, 5 Ill.2d 277, cited by defendant, does not a dictate a different conclusion here. In Hermens, one accomplice denied the testimony of the other and corroborated the testimony of the defendant. In addition to the fact that the State's witness was thoroughly discredited, prejudicial statements were made about other offenses. (See People v. Slayton (1974), 16 Ill. App.3d 910, 915.) On the whole record before us we conclude that there was evidence from which the jury could properly find that the defendant was guilty beyond a reasonable doubt.

Defendant further contends that even if Page's testimony is taken as true there is no proof of felonious intent in the taking of the tires because Zayre's employee, Owen, made the sale to defendant, and there was no showing that they were coconspirators. The proof of the necessary intention is an essential element of the offense of theft as defendant argues. (People v. Betts (1937), 367 Ill. 499, 502-503.) But more persuasive, in our view, is the argument of the State that the circumstances are sufficient to compel the conclusion that defendant knowingly obtained control over property with the intention to deprive the owner permanently of its use and benefit. People v. Baddeley (1969), 106 Ill. App.2d 154, cited by defendant on this issue, involved essentially a bona fide although mistaken belief in the right to reclaim property without a court order and is therefore factually dissimilar. Also People v. Ibom (1962), 25 Ill.2d 585, is clearly distinguishable on its facts. The entire record in this case does not leave us with a grave and substantial doubt of the felonious intent on the part of the defendant.

Defendant next contends that he has been improperly sentenced for a felony and that his argument is not based on either the instruction given to the jury nor the claim that the verdict form was improper.

• 3 The indictment under which defendant was tried charged him with theft in excess of $150; but the form of the verdict did not specify any value. Defendant contends that the value of the subject of theft must be made a part of a jury verdict to support a felony conviction, particularly when value is substantially disputed. He reasons that People v. Dell (1972), 52 Ill.2d 393, stands for the proposition that the absence of any reference to value in a theft verdict results in a conviction of the misdemeanor offense of theft only. We disagree. Dell is factually distinguishable. In Dell, a figure of $250 was found to have been inserted in the verdict form before it was submitted to the jury, thus precluding the determination by the jury of the disputed fact of value. Here, no figure was inserted in the verdict, and the jury was given ...

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