APPEAL from the Circuit Court of Rock Island County; the Hon.
ROBERT M. BELL, Judge, presiding.
MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
After a jury trial defendant, Michael Fix, was convicted of the offense of theft in violation of section 16A-3(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 16A-3(a)). The circuit court of Rock Island County sentenced him to a term of imprisonment of from three to nine years to be served consecutively with another sentence.
Since the errors raised on this appeal are not dependent on a detailed exposition of the facts, they will be set forth only briefly. On November 25, 1975, two employees of the Montgomery Ward Store observed the defendant take two coats from a rack, place them over his arm and walk out of the store without paying for them. He was followed, stopped, arrested and thereafter charged with theft which is sometimes referred to as retail theft.
On this appeal two errors are urged. First, it is claimed that the provision of the statute under which defendant was convicted is unconstitutional. Second, it is claimed the form of the sentence is erroneous.
The constitutional issues raised by the defendant involve two provisions of the statute (Ill. Rev. Stat. 1975, ch. 38, pars. 16A-3 and 16A-4). First we shall consider the error assigned with respect to the second provision. Section 16A-4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 16A-4) provides:
"Presumptions. If any person:
(a) conceals upon his person or among his belongings, unpurchased merchandise displayed, held, stored or offered for sale in a retail mercantile establishment; and
(b) removes that merchandise beyond the last known station for receiving payments for that merchandise in that retail mercantile establishment such person shall be presumed to have possessed, carried away or transferred such merchandise with the intention * * * of depriving the merchant permanently of the possession, use or benefit of such merchandise without paying the full retail value of such merchandise."
The objection raised to the foregoing provision is generally that it is an improper presumption not having an adequate basis in fact. There is however a preliminary hurdle to a consideration of this issue since as the People point out no issue of concealment is raised by the facts. Therefore, according to the People, the defendant is and cannot be aggrieved by this provision of the statute. We agree.
• 1 A review of the record and the facts relied upon by the defendant indicates that defendant made no effort to conceal the coats and there is no application or consideration of the presumption by the jury. Even if we were to accept the defendant's theory, and we express no opinion on it, it could have no effect on the defendant's conviction. (City of Elmhurst v. Buettgen, 394 Ill. 248, 68 N.E.2d 278.) Accordingly, we decline to consider this assignment of error.
The next assignment of error regarding the constitutional issue involves section 16A-3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 16A-3), which provides:
"A person commits the offense of retail theft when he knowingly:
(a) Takes possession of, carries away, transfers or causes to be carried away or transferred, any merchandise displayed, held, stored or offered for sale in a retail mercantile establishment with the intention of retaining such merchandise or with the intention of depriving the merchant permanently of the possession, use or benefit of such merchandise without paying the full retail value of such merchandise."
Defendant insists this provision violates the 1970 Illinois Constitution, article IV, section 13, prohibiting special legislation and the Fourteenth Amendment to the Constitution of the United States because it deprives him of equal protection of the law. Defendant's argument is twofold. First, he argues that because the statutory provision applies only to the theft of property from a retail mercantile establishment it does not apply to all classes similarily situated. Second, he argues that the purpose and effect ...