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People v. Harbarugh

OPINION FILED JULY 6, 1976.

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

v.

JOHN GILBERT HARBARUGH, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. C.M. WILSON, Judge, presiding.

MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:

Defendant, John Gilbert Harbarugh, was charged in a two-count indictment with theft in violation of section 16-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1971, ch. 38, par. 16-1). Specifically, the first count charged him with stealing from Linda Tuman a stereo set exceeding $150 in value. The second count charged defendant with the theft of a 1967 Ford automobile valued at more than $150 which was registered to Linda's mother, Anita Tuman.

After a bench trial, defendant was acquitted on the first count, but convicted on the second. He was sentenced to the Illinois State Penitentiary for one to three years and taxed $97 costs pursuant to section 13 of division XIV of the Criminal Code of 1874 (Ill. Rev. Stat. 1973, ch. 38, par. 180-3). Defendant appeals and raises four issues: (1) whether it was plain error for the court to admit testimony as to the names on the title of the automobile, where the document itself was not introduced into evidence; (2) whether the State failed to prove beyond a reasonable doubt that defendant knowingly exercised unauthorized control over the automobile alleged to have been stolen; (3) whether the trial court improperly restricted defense counsel's inquiry pertaining to past representations made by the State's witness, Linda Tuman, regarding the nature of her relationship with defendant; and (4) whether the Illinois cost statute (Ill. Rev. Stat. 1973, ch. 38, par. 180-3) is void on its face and unconstitutional in its application.

We affirm the judgment of the trial court.

At trial, the State's witness, Linda Tuman, testified that she met defendant, John Gilbert Harbarugh, in October or November, 1972, when she was hitchhiking home to Skokie, Illinois, from the University of Oklahoma. Defendant picked her up in Springfield, Missouri, and drove her the remaining distance. Subsequently, she saw him again at Thanksgiving and later on several separate occasions. During this period she entrusted a 1967 Ford automobile to him so that he could fix its transmission. Although Linda Tuman was the primary user of the car, the title to this automobile was in her mother, Anita Tuman.

Linda Tuman testified that on December 6, 1972, defendant came to her home at approximately 11 a.m. and told her he wanted to sell the automobile. She showed him the title and told him that he would have to wait until her mother returned. She never gave him permission to take the title. He left, but came back at 6 p.m. Since Linda Tuman was entertaining dinner guests at that time, he left again and returned at 11:30 p.m. At that time defendant announced that he was taking her stereo in order to complete a trade for a 1957 Chevrolet. She warned him that if he did, she would call the police. At that time he threatened to kill her and her parents if she reported him. He then took the stereo and left.

Some time later Miss Tuman's mother, Anita Tuman, discovered that the title to the automobile was missing and that both the car and the stereo had been traded to Gilberto Moreno for a 1957 Chevrolet.

Linda Tuman met with defendant on several occasions following this incident in an effort to secure the return of the automobile and her stereo set. These meetings included a three-day period during which Miss Tuman stayed with defendant's sister. During these meetings, defendant alternately promised and then refused to secure the return of the stereo set and the automobile. Neither the car nor the stereo equipment was returned by defendant. On December 27, 1972, both Linda Tuman and her mother signed separate complaints against defendant for the theft of the stereo set and the automobile. Defendant was subsequently arrested and the missing property was returned by the Evanston police, who recovered the car and the stereo set from Gilberto Moreno, an employee of a Mobil service station in Chicago.

On cross-examination, Miss Tuman testified that during her three-day stay with defendant's sister she talked on the phone with her parents and the police. She talked briefly about marrying defendant. When defense counsel asked her if she ever told her parents that she was in fact married to defendant, an objection by the State was sustained.

Linda Tuman's mother, Anita Tuman, testified that the Ford automobile which defendant traded to Gilberto Moreno was registered in her name. She discovered that the title to the automobile was missing on December 9 or 10. She did not give defendant the title to the car, did not sign it and did not consent to the sale of the car. When the car was returned by the police, Gilberto Moreno gave to Anita Tuman the title to the automobile which had been issued to him by the Secretary of State. Neither the original nor a copy of Anita Tuman's title to the car was offered in evidence at trial.

Gilberto Moreno described the agreement which defendant made with him to trade a 1967 Ford automobile and a stereo system for Moreno's 1957 Chevrolet. He testified that defendant told him the Ford belonged to his (defendant's) wife. When defendant gave him the title to the automobile, the same name appeared on the face and back of the title, but he could not recall whether the name was Linda Tuman or Anita Tuman. He did remember that he had testified before the grand jury that Anita Tuman's name was on the title. He further stated that he had not recovered his 1957 Chevrolet, which he valued at approximately $800. On cross-examination, he testified that he never saw a woman identified as defendant's wife in the company of the defendant, either at the time the agreement was made or at any other time.

Daniel Mangas, a detective with the Evanston police department, was called by defendant as a witness. He stated that he had conducted an investigation after a stolen property report was filed with the Evanston police department by Mrs. Anita Tuman and Linda Tuman. By questioning defendant he was able to locate Linda Tuman's automobile and stereo equipment. He further stated that defendant told him he had traded the 1967 Ford and the stereo set to Gilberto Moreno and that defendant admitted signing the title to the 1967 Ford in order to transfer it to Moreno. Objection to a question whether Linda Tuman had ever told him she was married to defendant was sustained.

Larry Carter, a friend of defendant, testified that Linda Tuman had helped carry the stereo from the basement of her parents' home to her car on the night that both were traded to Moreno for his 1957 Chevrolet. Both he and Linda Tuman were present during the entire transaction. When asked if he had ever heard Linda Tuman mention that she was going to marry defendant, an objection by the State was sustained.

Larry's brother, Donald Carter, testified that he was with Linda Tuman and defendant when the trade with Moreno took place. On the night of the trade, defendant carried the stereo from the house by himself and Linda helped load the equipment into the car. He and defendant then drove the Ford to the Mobil station alone, followed by Linda Tuman in her father's Cadillac. ...


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