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People v. Van Deveire

OPINION FILED APRIL 13, 1977.

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

v.

LARRY VAN DEVEIRE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Rock Island County; the Hon. GLENN W. APPLETON, Judge, presiding.

MR. PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:

Defendant Larry Van DeVeire appeals from convictions and sentences on two felony counts of theft. The indictment charged him with two counts of theft of property having a value of $150. Following a jury trial ending in verdicts of guilty as to the charges, defendant was sentenced to concurrent terms of 2 to 6 years in prison.

On appeal in this court defendant alleges that the trial court committed reversible error in (1) denying defendant's motion to quash the indictment on the ground that the counts alleged in the indictment were misjoined in violation of section 111-4 of the Code of Criminal Procedure (Ill. Rev. Stat. 1975, ch. 38, par. 111-4), and (2) denying defendant's motion to quash the second count of the indictment on the ground that the count impermissibly alleged theft of property from two owners.

During the week prior to October 1, 1975, James Suggs informed defendant Van DeVeire that he knew of an automobile which they should take. Defendant responded that it sounded like a good idea. On October 1, 1975, John Johnson, an employee of the Bert M. Lafferty Company, was in possession of a 1975 Ford LTD, owned by the Lafferty Company. On the evening of October 1, 1975, Johnson drove the automobile to a meeting in Rock Island and, as was his custom, left the keys to the car under the mat of the car while he attended the meeting. When he left the meeting, Johnson discovered that the car was missing.

At about 8 p.m. on October 1, 1975, defendant Van DeVeire and his wife were sitting in an automobile awaiting Suggs, when Suggs came in a 1975 Ford LTD. Defendant and his wife followed Suggs to a field near Illinois City, where various items, including a calculator, a case of paint, camp stools, and the wheels and tires, were removed from the Ford LTD and placed in defendant's automobile. The items removed from the Ford, with the exception of the calculator, were transferred to an old school bus owned by Suggs. The calculator was retained by defendant's wife.

On October 2, 1975, defendant drove Suggs' school bus to Rock Island, Illinois. On October 3, 1975, a Rock Island police officer observed, by looking into the bus, some of the items which had been removed from the Ford LTD. Later that same day, police officers saw defendant and another man remove items from the bus and load them into an automobile. When the car left, the officers followed and stopped the car, which was driven by the defendant. Except for the calculator, all of the items taken from the Ford LTD were discovered during the ensuing search of defendant's car, which was made with defendant's consent.

On December 11, 1975, the grand jury of Rock Island County returned an indictment charging defendant and James Suggs, as co-defendants, with two counts of theft. The first count of the indictment charged that defendant and Suggs had, on October 1, 1975, committed theft by exerting unauthorized control over the 1975 Ford LTD, property of Lafferty Company, having a value in excess of $150. The second count charged that defendant and Suggs had, on October 7, 1975, committed theft by exerting unauthorized control over certain property of the Lafferty Company and Johnson, having a total value in excess of $150. The second count of the indictment was amended on March 29, 1976, to change the date of the alleged offense to October 3, 1975. In a separate proceeding, Suggs pleaded guilty to the offenses.

In the jury trial of the defendant following the selection and swearing in of the jury, the defense orally moved to quash the indictment. The grounds urged in support of defendant's motion included, among others, that the two counts of the indictment were improperly joined and that the second count of the indictment improperly combined the property of two individuals. At that time, the trial court denied defendant's oral motion with respect to certain matters and took the matters of improper joinder of counts and improper combination of property within the second count under advisement, subject to the filing of a written motion by the defendant.

The State then proceeded to present the evidence concerning the events of October 1 through October 3, 1975. The evidence for the State included testimony that the tires and paint, owned by Lafferty and taken from the Ford LTD, were worth in excess of $150. At the close of the State's evidence, defendant's motion to quash the indictment was renewed in the form of a written motion. After hearing arguments by counsel, the trial court denied the motion. The defense then presented evidence on behalf of the defendant who did not testify.

After all of the evidence had been completed, the State moved, pursuant to section 111-5 of the Code of Criminal Procedure (Ill. Rev. Stat. 1975, ch. 38, par. 111-5), to delete from the second count of the indictment all language referring to Johnson's property. This motion was allowed and the State relied in the second count only as to property owned by Lafferty. Subsequently, the jury returned a verdict finding defendant guilty of theft on both counts of the indictment.

• 1 On appeal in this court defendant first contends that the indictment impermissibly joined two distinct offenses. As stated in People v. Bricker (4th Dist. 1974), 23 Ill. App.3d 394, 396, 319 N.E.2d 255:

"It is axiomatic that a defendant may not be placed on trial, over his timely objection, on an indictment charging separate offenses when it appears these offenses are not part of one and the same transaction, but are `separate and distinct both in law and fact.

[Citations.] A defendant cannot be forced to trial on disassociated felonies.' People v. Fleming, 121 Ill. App.2d ...


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