APPEAL from the Circuit Court of Rock Island County; the Hon.
JOSEPH G. CARPENTIER, Judge, presiding.
MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
Defendant Larry Eugene Miles appeals from a judgment of the Circuit Court of Rock Island County finding him guilty of felony theft, pursuant to which he was sentenced to a term of 3 to 9 years imprisonment (to be served concurrently with a sentence simultaneously imposed following revocation of an earlier probation). The cause was tried before a jury. The sole assignment of error on this appeal is that the trial court erroneously refused to instruct the jury on the offense of misdemeanor theft.
Defendant was charged by information with the theft of hams, having a total value of more than $150, from a Jewel Food Store in East Moline, Illinois. The State's evidence at the trial established that on September 27, 1975, the defendant was observed, by store employees in the store, proceeding toward the front door with a cart load of hams. The store employees pursued defendant into the parking lot, and requested him to produce a receipt. The defendant then pushed the cart away and ran in another direction, until he was stopped by a policeman in a squad car. On appeal in this court, defendant does not challenge the sufficiency of the evidence to support his conviction, but rather submits that the evidence of value presented at the trial, was not so compelling as to preclude a misdemeanor theft verdict, had the jury been instructed as to misdemeanor theft.
The hams which defendant was convicted of stealing were not introduced into evidence. Photographs of the cart containing the hams, taken by an investigating police officer, were introduced at the trial instead of the perishable products. In addition, two store employees totaled the price of the goods in the cart before returning the goods to stock in the store. One employee read the ticket prices to a second store employee, who entered the price on an adding machine and also checked the price on the ticket. The adding machine tape, which was introduced into evidence, contained 20 entries. The testimony established that the 20 entries corresponded to one bag of apples (for the theft of which defendant was not charged) and 19 hams which were in the cart. The total retail price of the 19 hams was $215.65. During cross-examination of one of the store employees, the defense established that the store markup on goods such as the stolen hams was approximately 25%.
At the jury instruction conference, the State tendered the following instruction, patterned after Illinois Pattern Jury Instruction Criminal No. 2.01:
"The defendant is charged with the crime of Felony Theft over $150, which includes the crime of Theft, where the value is $150 or less. The defendant has pleaded not guilty."
Defense counsel objected to the reference to misdemeanor theft, on the ground that it was confusing and improperly included. The trial court sustained the objection on the ground that the proof at trial contained no evidence of misdemeanor theft, and the instruction, with the reference to misdemeanor theft deleted, was given to the jury. Subsequently, the defense objected to the State's tendered verdict forms on misdemeanor theft, and the State withdrew the tendered forms.
At a continuation of the instruction conference, defense counsel offered an instruction, patterned after IPI Criminal No. 2.01, as follows:
"The defendant is charged with the crime of Felony Theft which includes the lesser included offense of Misdemeanor Theft. The defendant has pleaded not guilty."
At that time, the following discussion took place:
"BY THE COURT: Alright, do you have any objections to defendant's [tendered instruction] * * *?
MR. DOERR [for the State]: Your Honor, it sets out a lesser included offense, but I don't think it's but I think it's up to the Court to determine whether there's been evidence of a lesser included offense of misdemeanor theft in this case under the evidence.
BY THE COURT: I'm going to refuse it. There hasn't been any evidence whatsoever of ...