APPEAL from the Circuit Court of St. Clair County; the Hon.
ALVIN H. MAEYS, JR., Judge, presiding.
MR. PRESIDING JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
After a jury trial in the circuit court of St. Clair County the defendant was convicted of the offense of theft over $150 and sentenced to a term of imprisonment of not less than 1 nor more than 2 years. The defendant was represented by retained counsel.
We first consider the defendant's contention that he was not proven guilty beyond a reasonable doubt. The defendant, who was an elected official of the East Side Levee and Sanitary District, was accused of theft in that he exerted unauthorized control over funds in the amount of $420 which were the property of the sanitary district. The defendant admits that he did exert control over the funds in question but asserts that the evidence fails to establish that he possessed the intent to permanently deprive the sanitary district of the funds.
It is undisputed that the East Side Levee and Sanitary District entered into an agreement with the Village of Alorton, Illinois, in the fall of 1969. Pursuant to that agreement the Village of Alorton was to rent certain flood protection equipment from the sanitary district for a period of 43 days at a rate of $19.53 per day. The treasurer for the Village of Alorton wrote checks of $420 each on November 3, 1969, and December 4, 1969, payable to the defendant. The checks were written on the Village Motor Fuel Tax Account and were intended to serve as payment for the rental of the equipment from the sanitary district. The check written on November 3, 1969, is the subject of the instant theft charge. Both checks were given to the defendant who subsequently cashed the checks at a grocery store. The defendant did not turn the funds over to the sanitary district.
In April 1970 an auditor from the Illinois Division of Highways audited the Village of Alorton's Motor Fuel Tax Account. The auditor sent a letter to the clerk of the Village of Alorton calling to the clerk's attention the "irregularity" of the two payments totaling $840 to the defendant. The payments were deemed irregular because the checks were made payable to an individual rather than to the East Side Levee and Sanitary District. The village clerk then sought verification from the sanitary district that the money in question had been received. A letter was then sent to the village clerk on the stationery of the East Side Levee and Sanitary District stating that $840 had been received from the Village of Alorton as payment for the rental of equipment during 1969.
In February 1971 the defendant told the mayor of Alorton that he wanted to return the $840 to the village. He requested that the village then write a check for $840 to the East Side Levee and Sanitary District. The mayor brought the matter up for consideration at a meeting of the village board on March 16, 1971. At that meeting the village board decided to accept the money from the defendant if it were returned. The defendant did give $840 to the mayor's secretary in late March or early April 1971. The money was subsequently given to the village treasurer who on June 29, 1971, wrote a check for $840 to the East Side Levee and Sanitary District.
The defendant does not deny any of the above facts but maintains that he never had the intent to deprive the sanitary district permanently of the funds in question. He testified that when he received the check which was written on November 11, 1969, by the treasurer of the Village of Alorton he offered it to a female clerk in the sanitary district office. When she refused to accept the check, the defendant cashed the check at a grocery store. He allegedly offered the cash to somebody at the sanitary district office, but that person refused to accept the cash. The defendant stated that he then put the money in an envelope and locked it in his desk drawer with the intention to return the cash at some later date. He allegedly forgot about the money in the drawer until he discovered it 6 or 7 months later. The defendant testified that in March 1971 he gave the money to a female employee in the office of the mayor of Alorton. On June 23, 1971, the defendant was indicted for the offense of theft.
• 1 The defendant contends that his conviction must be reversed because the State failed to prove the requisite intent. We disagree. It is well established that in a trial for theft the requisite mental state may be deduced by the trier of fact from the facts and circumstances surrounding the alleged criminal act. (People v. Heaton, 415 Ill. 43, 112 N.E.2d 131; People v. McClinton, 4 Ill. App.3d 253, 280 N.E.2d 795.) Whether a defendant who is accused of theft had the felonious intent to permanently deprive the owner of the use or benefit of the stolen property is a question for the jury. (People v. Heaton; People v. Reans, 20 Ill. App.3d 1005, 313 N.E.2d 184.) The right to believe or disbelieve the testimony of a defendant as to the existence of the requisite felonious intent is the prerogative of the jury. (People v. Reans.) In the instant case we find that the circumstances of the defendant's conduct justify the finding of the jury that the defendant possessed the intent to deprive the East Side Levee and Sanitary District of the funds in question. The defendant cashed the check in question and did not attempt to return the money to the Village of Alorton until more than 1 year had passed. He did not attempt to return the money until after an audit of the Village of Alorton's Motor Fuel Tax Account disclosed the "irregularity" of the payments to the defendant. Under these circumstances the jury had the right to disbelieve the defendant's testimony that he innocently put the money in his desk drawer and forgot about it. We find therefore that the evidence is not so unsatisfactory as to justify a reasonable doubt of guilt.
The defendant's next contention is that the trial court erred in denying his motion for a change of venue. Defense counsel argued in the motion and at the hearing on the motion that the defendant could not receive a fair trial in St. Clair County because there had been a substantial amount of adverse pretrial publicity. Fifteen newspaper articles which had appeared in local newspapers and which discussed the defendant's case were attached to the motion for a change of venue. Some of the articles were merely factual accounts of the status of the case. Nine of the articles, however, referred to the fact that the defendant had recently been convicted of another offense involving misconduct in office. The trial court denied the motion for a change of venue, accepting the prosecutor's argument that voir dire examination should be conducted so that it could be determined whether an impartial jury could be empaneled.
Voir dire examination began on the afternoon of November 4, 1971, and was concluded the next day. The 13th potential juror called during voir dire was Judith Storment. She testified that there had been a great deal of discussion about the defendant's case among the people who had been called for jury duty. Mrs. Storment further testified that many of the prospective jurors brought newspapers with them when they came to the courthouse in the mornings. She stated that a rumor that the defendant was attempting to delay his trial by faking a heart attack was discussed by the prospective jurors. She further stated that several of the jurors had expressed their opinion that they believed the rumor. Mrs. Storment also stated that she did not hear anybody express an opinion as to the guilt or innocence of the defendant. She was excused as a juror by the court. After Mrs. Storment's testimony, defense counsel renewed his motion for a change of venue. The motion was denied, and voir dire continued. After three more prospective jurors were questioned the defendant again renewed his motion for a change of venue. The motion was again denied. Thirty-one other prospective jurors were questioned before 12 jurors and 2 alternates were chosen. Defense counsel did not renew his motion for a change of venue at the close of voir dire.
• 2 "`[T]he rule is that an accused is entitled to a change of venue when it appears there are reasonable grounds to believe that the prejudice alleged actually exists and that by reason of the prejudice there is reasonable apprehension that the accused cannot receive a fair and impartial trial. [Citations.]'" (People v. Gendron, 41 Ill.2d 351, 354, 243 N.E.2d 208.) The proof of potentially harmful publicity within a community does not alone establish proof of community prejudice as each case must be judged on its own facts. (People v. Torres, 54 Ill.2d 384, 297 N.E.2d 142.) The examination of prospective jurors on voir dire is generally the most valuable method of determining whether pretrial publicity has so prejudiced the defendant that he could not receive a fair trial. (People v. Torres.) In the instant case 5 of the 12 jurors selected to hear the case testified at voir dire that they had never heard anything about the defendant's case. Seven of the jurors stated that they had read or heard publicity about the case but that they had not formed an opinion as to the defendant's guilt and would not be influenced by what they had read and heard. All jurors claimed to be impartial and insisted that they were not prejudiced against the defendant.
• 3 It is significant that defense counsel did not challenge for cause a single member of the jury sworn to try the case. The failure to challenge any of the jurors for cause is strong evidence that counsel was convinced that the jurors were not biased and had not formed opinions as to the defendant's guilt. Beck v. Washington, 369 U.S. 541, 8 L.Ed.2d 98, 82 S.Ct. 955; People v. Torres.
• 4 Whether to grant a motion for a change of venue is discretionary with the trial court and the court's decision will not be reversed unless it constitutes a clear abuse of discretion. (People v. Myers, 20 Ill. App.3d 83, 312 N.E.2d 741.) We find that the pretrial publicity in the instant case was not so inflammatory that the court was required to disregard the testimony of the jurors that they would be fair and impartial. For that reason, and because defense counsel did not challenge any of the jurors for cause, we hold that the trial court did not abuse its discretion in denying the defendant's motion for a change of venue.
The defendant also contends that the trial court erred in denying his third motion for a substitution of judges. The first two motions were granted automatically, and Judge Alvin Maeys was then assigned to the case. The defendant then filed his third motion for substitution of judges alleging that Judge Maeys was prejudiced against him. In an affidavit filed in support of the motion the defendant stated that in the previous year he had been found guilty of 5 counts of official misconduct in a bench trial by Judge Maeys. Judge Maeys had fined the defendant $250 on each count and ordered him removed from office as a trustee of the East Side Levee and Sanitary District. At the hearing on the motion defense counsel argued that the motion should be granted because the instant case, like the case heard by Judge Maeys the previous year, concerned alleged misconduct in office on the part of the defendant. Counsel argued that since the alleged crimes were of a similar nature, it would be difficult for Judge Maeys to remain unbiased. The defendant testified at the hearing and stated that because of his prior trial before Judge Maeys, he had the feeling ...