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People v. Deery

OPINION FILED AUGUST 16, 1976.

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

v.

HUGH DEERY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Kane County; the Hon. ALBERT S. O'SULLIVAN, Judge, presiding.

MR. JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:

The defendant was charged with a violation of section 16-1(d) of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 16-1(d) (receiving stolen property). He was found guilty by a jury and was sentenced to a one-year period of probation. *fn1 The defendant appeals his conviction on the following grounds:

(1) That the indictment failed to charge an offense;

(2) that the indictment was defective in that it failed to include an essential element of the offense of receiving stolen property, that is, that the defendant knew at the time he received the stolen property that it was stolen;

(3) that reversible error was committed when the trial court allowed the State to examine State's witnesses with respect to dealings with people other than the defendant relative to the stolen snowmobiles;

(4) that the State failed to prove the defendant guilty beyond a reasonable doubt.

The first issue stated has been resolved by our supreme court in the case of People v. Dickerson, 61 Ill.2d 580, which reversed the decision of this court in People v. Dickerson, 21 Ill. App.3d 977. Counsel conceded at oral argument that defendant was waiving this issue in view of that supreme court decision.

In order to understand the remaining issues raised by the appeal, a brief recital of the circumstances which resulted in the charge being brought is essential. The testimony established that the defendant had bought the property consisting of several stolen snowmobiles from Dale Finch. It was uncontradicted that Finch and the defendant had been acquainted for some 27 years, and Finch testified that the defendant was "one of my best friends." Both Finch and the defendant were businessmen in the city of Rockford. Finch had formerly been a contractor but for some 18 months preceding the sale of the stolen property he had been the owner and operator of a motel. The defendant was, at the time of the transaction in question, the owner and operator of the Rockford Speedway. Previous to that he had been an insurance adjuster and later operated a gas station. He had served two times as alderman of the city of Rockford. (1961-1969). The defendant and Finch apparently met through their wives, who had gone through nurses' training together and had remained friends thereafter. The testimony indicated that both the defendant and Finch were in the habit of picking up bargain merchandise here and there at reduced prices for resale. The defendant purchased various items at reduced prices from Finch over a period of years, which Finch had purchased at various "sub" markets. In September of 1971 the defendant, as was his custom, attended the annual "closeout" sale at Wolff Company in Chicago. The defendant described Wolff as a "sort of super wholesaler." He had previously bought things from Wolff. At the Wolff show on this occasion he saw snowmobiles for sale in truckload lots at a price of from $430 to $530 each, depending on how many were purchased, but not less than a truckload could be bought. He testified he considered buying a truckload and selling them to his friends, retaining one or two for his personal use, but finally decided that the servicing and financing of a whole truckload of snowmobiles would be too difficult and he did not buy the machines.

The defendant testified that a few days later he visited his friend, Dale Finch, at the latter's motel in connection with the possible purchase of the said motel by the defendant's brother. During this visit he mentioned the bargain snowmobiles to Finch, who responded that he himself had just bought some snowmobiles which he could sell at a price of around $550 each. The defendant agreed to buy a machine at that price. He testified he asked Finch at that time where the snowmobiles came from and Finch said it was "a deal like insurance liquidators." He also testified he asked about papers for the machines and Finch said the papers would be forthcoming. Finch also told the defendant the names of several other persons known to the defendant to whom Finch had sold one or more of the machines. A few days later, the defendant testified, Finch delivered four snowmobiles to the Rockford Speedway. The defendant drove in just as Finch was leaving and protested, saying he had not ordered four machines, but Finch said he had to get the truck back right away and that he would call the defendant the next day. Of the three extra machines, one was purchased by an associate of the defendant and two were sold to an acquaintance of another associate. Defendant testified emphatically that he was unaware and had never been informed by Finch or anyone else that the snowmobiles were stolen.

Finch testified for the prosecution under a grant of immunity, he having been convicted of interstate transportation of stolen property previous to the defendant's trial and having been given a suspended sentence in Federal court. His testimony agreed with that of the defendant so far as their mutual friendship was concerned and their previous dealings in reduced price merchandise on a somewhat casual basis without receipts being given. However, his testimony as to the transaction in question differed in some important respects from that of the defendant. Finch said that the first talk with the defendant about snowmobiles was when he called the defendant and told him he was "hung with a load of hot snowmobiles" and had to get them out of Sassman's warehouse. He testified, "and I asked him if I could store a couple out to the Speedway." According to Finch's testimony this conversation occurred within a day or two or possibly three days after the snowmobiles were delivered to Sassman's warehouse, that is between October 5 and October 8. Finch said the defendant told him he "could put one or two out there." Finch, within a few days afterward, delivered four machines to the Rockford Speedway. According to Finch he then had a conversation with the defendant a day or two later at Finch's motel in which the defendant asked him if he could get more snowmobiles. Finch said that at that time he told the defendant he could not get any papers for them and the defendant said that was all right that "he didn't need a birth certificate" for the machines. The defendant denied this and also denied that he met with Finch after the initial delivery of the machines at the Speedway. Finch testified that some days after the initial delivery at the Speedway he met with the defendant and two of his associates, Burdick and Scott, at Finch's motel and discussed the possible purchase of additional snowmobiles. All three, the defendant, Scott and Burdick, denied this. Scott said he went alone to the motel to pick up the skis which had been missing from the snowmobile he purchased when it was delivered to the Speedway but that there was no conversation about the source of the snowmobiles at that time as testified to by Finch. Burdick testified that after he bought one of the machines which had been delivered to the Speedway he promised his machine to Don Elmore and as this left him without a machine he then went to see Finch at his motel and asked him if there were any more machines for sale. He testified he was alone at that time except for his nine-year-old son and this was the only direct contact he ever had with Finch. He further testified that Finch told him at that time that the machines were from a liquidation sale or else he had heard this elsewhere, he is not sure, but he was certain that Finch had never told him the machines were stolen. The testimony of the defendant, Scott and Burdick, therefore, directly contradicted Finch's testimony on the point of a joint meeting at the motel following the delivery at the Speedway, as well as his having informed the three that the snowmobiles were stolen.

We now proceed to a consideration of the remaining issues raised by the defendant. However, for reasons indicated below, we will momentarily pass by the second issue raised in this appeal dealing with the standard of proof set out in section 16-1(d) of the Criminal Code and resolve first the issues having to do with the admission of evidence and the question of reasonable doubt.

During the testimony of the witness Finch, who testified under a grant of immunity, he was permitted to testify over objection that he told other persons who approached him or whom he approached about buying one of the snowmobiles that the machines were stolen. Also, the witness Busekros, president of a local snowmobile club, was allowed to testify over repeated objections by defense counsel that he had met Finch around October 5, 1971, at a restaurant for the purpose of buying several snowmobiles from him. Busekros further testified that he had with him about $5,000 he had withdrawn from his savings account to make the purchase but after talking with Finch he did not buy the machines but left and redeposited the money in his savings account. Defense counsel objected strenuously to this testimony as being irrelevant to the issue of defendant's guilt and was overruled. Defense counsel then on cross-examination asked the witness whether he had been turned off by the price or something else, to which the witness replied that he had not been turned off by the price asked. On redirect examination the State's Attorney then asked what it was that had dissuaded him from buying the machines and Busekros replied, "Mr. Finch told me they were stolen."

The defense contends the testimony of both Finch and Busekros as to Finch's dealings or attempted dealings and his conversation in the course thereof with third persons is irrelevant, collateral to the question being tried — which was the guilt or innocence of Hugh Deery — and was definitely prejudicial to the defendant in raising a false inference. The testimony of Busekros that he took money out of his savings account with the intention of buying snowmobiles but did not go through with the purchase naturally raised the implication that he was turned off at the last minute by Finch's candid admission that the machines were stolen. The defendant contends that Busekros was called by the State for this purpose only and that the inference which was raised was that since Finch had told Busekros the machines were stolen he had also so informed the defendant. Defendant contends this prejudiced him in the minds of the jury.

Two questions are raised by this assignment of error: (a) Was the testimony relevant and admissible and (b) if not relevant and properly admissible, was it so prejudicial to ...


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