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People v. Cobetto

SEPTEMBER 29, 1975.




APPEAL from the Circuit Court of Montgomery County; the Hon. PAUL M. HICKMAN, Judge, presiding.


Defendant appeals from a conviction on each of two counts of theft over $150 in violation of section 16-1(d) (1) of the Criminal Code (Ill. Rev. Stat., ch. 38, par. 16-1(d) (1)). The trial judge imposed a single sentence of 1 to 3 years' imprisonment and a fine of $1000. The court made no mention of the separate counts when the sentence was entered.

The evidence at the trial showed the following: During the late night hours of October 14, 1973, four men, Gary Frank, Roger Dyer, James Timm and George Timm, burglarized the North Litchfield Township Building. Various items were taken, including several different types of handtools, a BB gun, a radio, a steel filing case, four log chains, a grinder, a tree trimmer and a few other items. A little later that same night, probably during the early morning hours of October 15, 1973, Roger Dyer and Frank and George Timm also burglarized the residence of Ohren Sluder. From the Sluder residence they also took various items including a rifle (with a six-powered scope), a shotgun, a broiler oven, a portable radio, and a clock.

At approximately 11 a.m., October 15, 1973, Dyer and the two Timms took the combined stolen property to defendant Cobetto's residence and there, after Cobetto viewed the items in the trunk of George Timm's car, sold the items with the exception of the clock, to John Cobetto for $100 or $105.

Both Roger Dyer and George Timm testified at the trial of John Cobetto. Neither of them, however, recalled telling Cobetto that the property was stolen from two separate burglaries or even that the property was stolen.

Four days after the sale a number of policemen with a search warrant went to the Cobetto residence. Finding no one home, they broke in the door of the Cobetto home. A number of them proceeded to search the home while others searched outer areas. Various items were seized.

The grand jury returned a bill of indictment against John Cobetto charging three counts in violation of section 16-1(d) (1) of the Criminal Code. The first charged obtaining unauthorized control over property of Ohren Sluder, valued at more than $150. The second charged obtaining unauthorized control over property of North Litchfield Township valued under $150. The third charged substantially the same as the second count, except that more items were specified and a value of over $150 was charged. Before trial the prosecution dismissed the second count and proceeded to trial on Count I and Count III only. After the jury was sworn, defense counsel, out of the presence of the jury, moved that the prosecution elect on which count of the indictment it would proceed. Defense counsel argued that since the charges resulted from a single transaction, there was but one offense and that to allow the prosecution to proceed upon the premise that there were two offenses, would prejudice the defendant. Defense counsel also argued that in the alternative, if the court ruled that there were two offenses, they should be severed.

The court ruled that the defendant was charged with two crimes and that the State would have to prove the crimes as charged. The court also ruled that if the State proved that less than $150 was taken from each of the two owners, the defendant would stand convicted of two misdemeanors rather than a single felony.

Defense counsel filed a similar motion after the State rested its case, to which the court made a similar ruling. Defense counsel also made a motion for a directed verdict at that time, arguing that the prosecution had failed to properly prove value of the stolen property. The motion was denied. The defense elected not to present a defense.

On this appeal several issues are raised and can be stated in general as follows: (1) Whether the defendant committed two offenses; (2) whether the judge erred in allowing the prosecution to proceed under two separate counts, if only one offense was committed; (3) whether the proof of value over $150 was sufficient; and (4) whether the defendant could have been convicted as a felon, even if value of over $150 was not shown.

With respect to the first issue, the defendant argues on this appeal that since the defendant committed but one single act of receiving stolen property, he committed but one offense, regardless of the number of owners from which the property had been taken. On the other hand the State argues that since it had to prove different ownership of the property under one count than it had to prove under the other count the defendant could be charged with two separate offenses.

The trial court held the same view as did the prosecution. Twice during the trial the court ruled, out of the presence of the jury, that the defendant could be charged with and convicted of two separate offenses. This position is clearly wrong. Although the defendant obtained control of various items of property, he made but one reception. His offense was not in burglarizing the North Litchfield Township shed and then later burglarizing the Sluder home, clearly two separate wrongs, but rather in making the reception, a single act, of stolen property.

In People v. Israel, 269 Ill. 284, the defendant was found guilty of receiving stolen property knowing the property to be stolen. On appeal he argued that the judgment should have been arrested because two separate offenses had been charged in one count by virtue of the fact that the property he was charged as having received had been stolen from two separate owners. The court stated at 269 Ill. 284, 287-88:

"Where the offense is one act, fully completed at the same time and place, it is but one crime, however many different kinds of property may be stolen. There is no good reason why such an act may be said to constitute more than one crime because there are two or more separate owners of the property stolen. A crime is an offense committed against the public and not merely against a private citizen. Where articles of property are stolen at one and the same time and at the same place, from several separate owners, there are as many wrongs committed against private citizens as there are separate owners, but they are trespasses when so considered. As against the public such an act is but one offense or crime. To hold otherwise, a thief proven guilty of grand larceny might escape punishment therefor in the penitentiary by the splitting up of the State's cause of action into two or more separate suits for petit larceny, or he might be convicted two or more times for grand larceny for but one act or offense if the property stolen from each individual should be of sufficient ...

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