APPEAL from the Circuit Court of Winnebago County; the Hon.
WILLIAM R. NASH, Judge, presiding.
MR. JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT:
Defendant was charged with the theft of five snowmobiles under section 16-1(d)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1971, ch. 38, par. 16-1(d)(1)), and thereunder was found guilty by a jury.
This case returns to us from the supreme court which, in 61 Ill.2d 580 (1975), reversed the holding of this court which had found the indictment fatally defective. (People v. Dickerson, 21 Ill. App.3d 977 (1974).) On remand, the supreme court directs us to consider the issues not addressed in our earlier opinion: that the statute under which defendant was charged was incorrectly interpreted and applied in this case, that the evidence did not prove defendant guilty beyond a reasonable doubt, and that the statute is unconstitutional for vagueness. From our review, we find it unnecessary to reach the last contention.
• 1 Defendant urges that during the jury trial the State erroneously and recurrently referred to the crime charged as a possessory or continuing offense; that the court submitted jury instructions which indicated mere possession of stolen goods constituted the offense, regardless of the time defendant gained knowledge that the goods were stolen; and that such erroneous characterization of the crime charged and such erroneous instructions constitute reversible error. We agree. The pertinent part of section 16-1(d), under which defendant was charged, provides that a person commits theft when he knowingly:
"(d) Obtains control over stolen property * * * under such circumstances as would reasonably induce him to believe that the property was stolen, and
(1) Intends to deprive the owner permanently of the use or benefit of the property * * *."
• 2 The crime with which defendant was charged is the statutory equivalent of the much older crime of receiving stolen property. (See People v. Baxa, 50 Ill.2d 111, 115 (1971); People v. Rubin, 361 Ill. 311, 327-28 (1935).) Knowledge by defendant that the property was stolen when he received it has been, and still is, an element of this offense. (Baxa, at 114, 115; People v. Stewart, 20 Ill.2d 387, 392 (1960); Rubin, at 328; People v. Weiss, 34 Ill. App.3d 840, 842 (1976).) The modern statute provides an alternative element to proof of actual knowledge proof that stolen property was obtained under such circumstances as would reasonably induce the defendant to believe the property stolen. The addition of this statutory alternative does nothing to alter the crucial time frame requisite to the "guilty knowledge" element. The actual knowledge, or the circumstances which would reasonably induce such belief, must exist at the time of receipt of the stolen property; knowledge gained afterward does not satisfy this critical element.
• 3 This is not to say that the modern theft statute does not include a section broad enough to include the continuing offense of possession of stolen goods which are discovered to be stolen goods only after their receipt. Section 16-1(a) apparently encompasses such an offense. (People v. Marino, 44 Ill.2d 562, 576 (1970).) It is elementary, however, that a defendant may be convicted of only the offense with which he is charged, not of another offense with which he might have been charged. Defendant was not charged with a violation of section 16-1(a).
• 4 With the above understanding of the crime charged, we consider defendant's contentions that error was committed in the submission of People's Instructions 11 and 12 to the jury. These instructions were:
"(11) Possession is a voluntary act if the offender knowingly procured or received the thing possessed, or was aware of his control thereof for a sufficient time to have been able to terminate his possession." (Emphasis added.)
"(12) A material element of every crime is a voluntary act, which includes an omission to perform a duty which the law imposes on the offender and which he is physically capable of performing." (Emphasis added.)
These instructions, as well as the opening and closing statements of the State, implied authority to convict defendant of the crime charged merely because of his failure to terminate possession of the stolen snowmobiles when he found them to be stolen, at a time when he was physically capable of returning them. In light of the discussion above, such instructions and argument are incorrect to the extent they indicate that the offense charged is a continuing offense. The error was prejudicial in view of defendant's virtual admission at trial that, about a week after receiving them, he suspected the subject snowmobiles were stolen but took no immediate steps to turn them over to the police. (See further discussion of the facts of this case, infra.)
We next consider whether the evidence presented at trial was sufficient to prove defendant guilty, beyond a reasonable doubt, of a violation of section 16-1(d). We note that when this case was first before us, Justice Guild specially concurred on the basis that the evidence of guilty knowledge was insufficient.
• 5 Defendant does not contest the fact that the snowmobiles were stolen. The critical question is whether guilty knowledge on the part of defendant is indicated by the circumstances under which he obtained the stolen property. There is a long line of cases involving receiving stolen property which line indicates that when circumstantial evidence alone is relied on to prove the element of guilty knowledge, the circumstances must point clearly and conclusively, beyond a reasonable doubt, to the fact that "defendant knew the goods were stolen at the time he received them and must exclude every reasonable hypothesis other than that of guilt." (Emphasis added.) (People v. Rubin, 361 Ill. 311, 328 (1935); People v. Berg, 91 Ill. App.2d 166, 170 (1968); see People v. Legear, 29 Ill. App.3d 884, 888 (1975).) ...