APPEAL from the Circuit Court of Williamson County; the Hon.
WILLIAM A. LEWIS, Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Defendant, George Cunitz II, was convicted by a jury of felony escape and felony theft (of property valued over $150). The court sentenced him to imprisonment for three years and four months to 10 years for each offense, the terms to run consecutively. Defendant appeals, presenting five issues for review, all of which we will discuss after reciting the relevant facts.
On August 10, 1972 defendant was serving an eight-month sentence in the Williamson County jail as a condition of probation for felony theft. As the jailer entered the bullpen for a bed check about 10 p.m. that evening, four prisoners, including defendant, overpowered him and bound and gagged him. One of the prisoners took the jailer's billfold containing about $3 and a key to the west door of the jail.
The sheriff of Williamson County and several other officers discovered the jailer between 11 and 11:30 p.m. that evening. A population count showed that four inmates were missing. The jailer and the sheriff entered the prison booking room containing the prisoners' personal belongings and found the room ransacked. The jailer made a rough estimate at the time that the amount of money taken was about $355, along with some knives and watches.
Two of the escapees were apprehended the same evening and a third was taken into custody the following day. Approximately $50 in cash was recovered from these prisoners. Defendant successfully eluded recapture and joined a show at the State Fair in Springfield, Illinois, and traveled south with it to South Carolina. While there, he was arrested and convicted of house burglary and possession of cannabis and was sentenced to five years in the South Carolina penitentiary. Shortly after his release, he was again apprehended and held in Knoxville, Tennessee. Two Williamson County sheriff's deputies took him into custody there on June 25, 1975.
At trial, the court admitted in evidence as People's Exhibits 1 and 2, the bill of indictment and the judgment and sentence relating to defendant's prior conviction in Illinois of automobile theft. These records referred to the offense as "theft of more than $150"; none referred to the offense as a felony. The trial court also admitted in evidence over objection, People's Exhibit No. 7, which reflected the amount of money and other personal belongings that had been deposited by several inmates in the Williamson County prison booking room at times just prior to the instant escape. The court excluded People's Exhibit 5, an informal record book reflecting daily expenditures by the inmates.
Testifying in his own behalf, defendant denied the theft of the money, stating that he had entered the booking room on the night in question, had found the box with his name on it, and had removed his clothes.
After closing arguments the court supplied the jury with instructions and verdict forms. Neither the instructions nor the verdict forms relating to theft informed the jury that the value of the property taken was a material element of the offense charged and as to which the State bore the burden of proof beyond a reasonable doubt. Similarly, on the escape charge, neither the instructions nor the verdict forms advised the jury, first, that "theft of more than $150" was, in fact, a felony and, second, that proof that defendant was incarcerated for a felony at the time of his escape was a material element of the offense of felony escape. The jury returned verdict forms finding the defendant guilty of theft and guilty of escape.
Defendant contends that the jury verdicts support only a conviction for misdemeanor theft because the jury instructions did not allow the jury to independently determine the value of the property taken, a material element of the offense of felony theft. Defendant relies primarily on People v. Dell, 52 Ill.2d 393, 288 N.E.2d 459. We agree that it is in point and controlling of our disposition of this aspect of the case.
• 1 In Dell the supreme court considered all three of the propositions advanced by the State in the instant case to support the felony theft verdict. There, as here, the State contended (1) that defendant waived any error by failing to object or to submit alternative instructions (or verdict forms) for misdemeanor theft; (2) that defendant failed to rebut the proof at trial that the value of the goods stolen exceeded $150; and (3) that the reading of the indictment (which charged theft of property valued in excess of $150) in conjunction with the otherwise vague jury instructions indicated that the jury independently found every material element of the offense. The supreme court found none of these arguments persuasive. It recognized that the issue before it involved the constitutional right to a jury trial, an issue properly raised in a post-conviction proceeding, and found no waiver of the right by mere failure to take some affirmative action to secure the right. The court also reasoned, citing People v. Swinson, 406 Ill. 233, 92 N.E.2d 758, that since the value of stolen property is a material element of felony theft, a trial for felony theft requires the jury to determine independently the value element. Rejecting the analysis of the dissenting justice, based principally on People v. Harden, 42 Ill.2d 301, 247 N.E.2d 404, the majority held that the verdict supported only a conviction for misdemeanor theft.
The State argues that the application of the Dell case is explained away by People v. Eastland, 11 Ill. App.3d 271, 296 N.E.2d 363; and People v. Clement, 28 Ill. App.3d 136, 327 N.E.2d 601. We disagree. The Eastland case did not mention Dell but relied wholly on Harden and the fact that the jury was instructed that the defendant was charged with theft of property exceeding $150 in value. The Clement case is somewhat similar in that the court inferred that the value of the property was described as an element of the offense in the issues instruction. That factor was deemed sufficient to distinguish the case on its facts from Dell and to require the application of Harden.
The same court that decided the Clement case had occasion later to consider the same proposition in People v. Pugh, 29 Ill. App.3d 42, 329 N.E.2d 425. There the issues instruction did not set out every essential element of a felony theft charge but rather eliminated all reference to the essential element of value, and did not instruct that the State had any burden of proof on the issue that the value of the property taken exceeded $150. The jury returned a general verdict form finding defendant "guilty of theft" with no reference to a felony count of the indictment or other indication that the finding was of felony theft. In the absence of any point of reference to indicate the jury's intent in rendering the general verdict, the court distinguished Clement on the facts and held that the verdict would support only a conviction for misdemeanor theft.
• 2 The present case presents a situation even more favorable to defendant's position than the cases presented in Swinson and Dell. In the present case the jury returned a general verdict and made no specific finding of the value of the goods stolen. But unlike Swinson and Dell the defense here contested the value of the property taken, getting the jailer to admit that because the daily withdrawals of money by inmates, he had no way of knowing the exact amount of money taken from the record room. Defendant also testified that he took only his possessions from the record room. Further undermining the State's position, the court in Dell instructed the jury that it must find every material allegation in the indictment. In this case no similar instruction was given, although, as in Dell, the felony theft indictment was read to the jury. Nor was the jury apprised of its duty to find value in any other way. Cases cited by the State, which in effect rely on the dissent in Dell and on Harden, are distinguishable. Consequently, we find that the verdict rendered here cannot support a conviction for felony theft. People v. Pugh.
We insert as a caveat the observation that the problems of determining whether the jury has or has not found a defendant guilty of felony theft are very likely the result of the neuter phrasing of the Illinois Pattern Instructions, Criminal, pertaining to theft. In that series of instructions, beginning with number 13.01, no account is taken of the difference between felony theft and misdemeanor theft. No form is provided or suggestion made that would advise a jury of the valuation distinction between a felony and a misdemeanor. The decisions in many cases by courts of appeal in this State have admonished attorneys that when there is an instruction in Illinois Pattern Instructions, in either civil or criminal cases, relevant to an issue, that instruction must be used. Quite naturally then, prosecutors dutifully, if thoughtlessly, adopt the IPI Criminal instruction in its stated form. Where a defendant is being prosecuted for felony theft, problems arise, as in the cases discussed above. In a typical case, prosecution for theft by unauthorized control, the jury will be given an instruction that defines the crime and sets forth its elements, number 13.01, an instruction that sets forth the issues and the burden of proof which the State must meet, number 13.02, and a verdict form for finding defendant guilty, number 26.05. None of these instructions address the critical issue of valuation of the property where the charge is felony theft.
We think that some changes in the IPI Criminal instructions would be helpful; either in the substantive wording of the instructions themselves or in the Committee Notes of explanation in the use of the instructions.
Defendant next contends that the jury verdict will not support a conviction for felony escape. In his opening statement the State's Attorney told the jury that at the time of his escape the defendant was serving a sentence in the Williamson County jail for "auto theft." The judgment and mittimus for that offense were submitted to the jury as People's Exhibits 1 and 2. Both exhibits refer to the offense of "theft of property valued at more than $150" but neither referred to the offense as a felony. Neither the issues instruction nor the verdict form contained any indication that defendant was incarcerated for a felony at the time of his escape. Defendant therefore argues that the jury did not independently determine a material element of the offense charged and consequently his constitutional right to a trial by jury was abridged and the verdict will support only a conviction for misdemeanor escape.
• 3 Proof that defendant was in a penal institution for a felony at the time of his escape is the essential element that distinguishes the offense of felony escape from misdemeanor escape. People v. Arbuckle, 69 Ill. App.2d 251, 215 N.E.2d 825; Ill. Rev. Stat. 1975, ch. 38, pars. 31-6(a) and 31-6(b).
• 4 Although this element of felony escape was not presented for jury determination, we have nevertheless determined that no error occurred. We have reached this conclusion because the nature of the offense for which defendant was incarcerated at the time of his escape, either felony or misdemeanor, is a question of law, not of fact. As such, it is to be determined by the court, not the jury, and consequently defendant has not been deprived of his constitutional right to a jury trial.
By the common law jurors in both criminal and civil cases are to determine only questions of fact; it is for the court alone to determine questions of law. (People v. Bruner, 343 Ill. 146, 175 N.E. 400.) That common law distinction of function was continued by article I, section 13 of the Illinois Constitution of 1970 which provides: "The right of trial by jury as heretofore enjoyed shall remain inviolate." The significant words are "as heretofore enjoyed." (People v. Bruner.) In criminal cases the common law rule is, in fact, adopted by statute. Section 115-4(a) of the Code of Criminal ...