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People v. Gordon

SEPTEMBER 24, 1975.

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

v.

EDWARD E. GORDON, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. KENNETH R. WENDT, Judge, presiding.

MR. JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT:

Three indictments were returned against the defendant, Edward E. Gordon, on March 4, 1974. Each indictment contained two counts of theft over $150 in violation of sections 16-1(a)(1) and 16-1(b)(1) of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, pars. 16-1(a)(1), 16-1(b)(1)). In addition, each indictment contained one count of conspiracy to commit theft in violation of section 8-2 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 8-2). Section 16-1(a)(1) provides:

"A person commits theft when he knowingly:

(a) Obtains or exerts unauthorized control over property of the owner * * * [and]

(1) Intends to deprive the owner permanently of the use or benefit of the property."

Section 16-1(b)(1) provides:

"A person commits theft when he knowingly:

(b) Obtains by deception control over property of the owner * * * [and]

(1) Intends to deprive the owner permanently of the use or benefit of the property."

Section 8-2 provides in part:

"A person commits conspiracy when, with intent that an offense be committed, he agrees with another to the commission of that offense. No person may be convicted of conspiracy to commit an offense unless an act in furtherance of such agreement is alleged and proved to have been committed by him or by a co-conspirator."

On April 29, 1974, the defendant presented a motion to dismiss the indictments. In support of the motion, defendant contended that where the legislature has specifically devised special legislation that governs a particular area of criminal conduct, the general provisions of the Criminal Code cannot be invoked. The defendant asserted that he was acting in his capacity as a real estate broker when the alleged criminal conduct occurred and that the invocation of a general theft statute was barred by the enactment of a special misdemeanor statute which expressly punishes real estate brokers who fail to account or remit moneys, collected on behalf of their principals. Section 16 of the Real Estate Brokers and Salesmen License Act (Ill. Rev. Stat. 1971, ch. 114 1/2, par. 16) (hereinafter Brokers Act) provides in part:

"Any person * * * violating any provision of this Act * * * or any person * * * failing to account for or to remit for any moneys coming into his * * * possession which belongs to others or commingling the money or other property of his * * * principal with his * * * own, is guilty of a misdemeanor."

Since the only offense chargeable against him was a misdemeanor, the defendant further contended that the statute of limitations had run, and ...


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