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People v. Sabri





APPEAL from the Circuit Court of Du Page County; the Hon. JACK T. PARISH, Judge, presiding.


The defendant was charged in 1971 with the shoplifting from Marshall Field & Co. in Oakbrook Center of property with a value less than $150. A public defender was appointed at the arraignment and a bench trial was held before Jack T. Parrish, a non-lawyer judge. The defendant was found guilty of obtaining unauthorized control over property of Marshall Field & Co. and fined $90. We allowed the filing of a late notice of appeal and defendant filed this appeal in the latter part of 1975.

On the afternoon of June 23, 1971, a security officer of Marshall Field & Co., in response to a telephone call, went to the men's section of the store. While she was standing about 25 feet from defendant she saw him take a tan suit off the rack. He bent down with the suit for about a minute and when he stood up he placed an empty hanger back on the rack. The security officer did not actually see him place the suit in the shopping bag he was carrying. The defendant walked away from the area and was stopped by the security officer, taken to her office and, in examining the Sears, Roebuck shopping bag he had, the tan suit and a pair of slacks were found. The defendant told the security officer that he had bought the suit from a man outside of Fields in the mall. In a pocket of the suit in question a set of keys were found. Defendant testifed in his own behalf and stated that a tall, big man approached him in the mall of the Oakbrook Shopping Center as the defendant was parking his motorcycle and the man asked him if he wanted to buy the suit which the man said he had just bought at Fields. Defendant further testified he was standing beside one Judy Stevens and he asked her for change for a $50 bill, which she did not have. He went into a store and changed the $50 bill and paid for the suit. He then entered Marshall Field's, carrying two Sears bags containing the suit and a pair of slacks he intended to exchange for a different size. He testified further that while waiting for the sales clerk to return with a pair of slacks he was purchasing, he noticed suits similar to the one he had bought from the tall, big man outside and that he took one of the suits off the rack and tried the jacket on. Defendant testified that he put the suit back on the rack and while walking out of the area he was stopped by the security officer. Judy Stevens testified in the defendant's behalf and said she saw him talking to a tall, big man and that the defendant purchased a suit from this man, paying cash. She further testified that she talked for about 10 minutes with the defendant and they then went their separate ways.

• 1 The first argument of the defendant is that the complaint was void as it alleged that the defendant stole "various articles of men's clothing." In support of this contention the defendant has cited People v. Meyers (1947), 397 Ill. 286, 73 N.E.2d 288, where the supreme court held that an indictment was defective for failure to describe the goods stolen in any language other than "divers goods and chattels." Examination of Meyers discloses a most unusual situation in which the defendant was charged with larceny and burglary, pled guilty thereto and was sentenced to 1-14 years without the court stating whether the defendant was sentenced for either larceny or burglary or both. In Meyers the defendant, oddly enough with a sentence of 1-14 years, was in the penitentiary 16 years later when the supreme court considered the cause. Obviously the defendant was discharged from the penitentiary. We do not find Meyers to be controlling and it is to be observed that in the 30-year interim since that case was decided the Supreme Court of Illinois has recognized the efficacy of a bill of particulars in a criminal proceeding. In People v. Mahle (1974), 57 Ill.2d 279, 283, 312 N.E.2d 267, 270, the supreme court stated:

"The information must set forth the nature and elements of the offense charged as prescribed in section 111-3(a) of the Code of Criminal Procedure. (Ill. Rev. Stat. 1969, ch. 38, par. 111-3(a).) Whether the information is sufficient, however, is to be determined by the substance of the charge and not the technicalities of its language."

The court went on to state that an information was sufficient if it specifically stated the elements of the offense with sufficient particularity to apprise the accused of the crime charged and enable him to prepare his defense. The court concluded:

"Had the defendant had any doubt as to the identity of the victims of his deceptive practices, he could have removed the doubt by use of a bill of particulars. (Ill. Rev. Stat. 1969, ch. 38, par. 111-6.)" (57 Ill.2d 279, 282, 312 N.E.2d 267, 270.)

In People v. Pujoue (1975), 61 Ill.2d 335, 339, 335 N.E.2d 437, 440, the court stated:

"When attacked for the first time on appeal a complaint is sufficient if it apprised the accused of the precise offense charged with sufficient specificity to prepare his defense and allow pleading a resulting conviction as a bar to future prosecution arising out of the same conduct."

In the case before us no objection was made to the complaint in the trial court and this issue has been raised for the first time on appeal herein. Under the authority of the above cases we find this contention to be without merit.

We come then to the second contention of the defendant, that he was denied due process under the fourteenth amendment to the United States Constitution because he was tried before a non-lawyer judge. This issue was not raised in the trial court and it is to be noted that Judge Parrish, the presiding judge, was elected to the office of justice of the peace in 1961 and blanketed in as an associate judge by the transition schedule of the 1970 Constitution. *fn1 It is also to be noted at this point that the defendant was charged with theft of under $150 in value (Ill. Rev. Stat. 1969, ch. 38, par. 16-1(a)). This statute provided that for such offense the defendant could be sentenced to jail for a period not to exceed one year and/or a fine not exceeding $500. The defendant was not sentenced to jail but was fined $90 and costs.

The defendant argues he was deprived of due process simply because he was tried by a lay judge for a crime for which the penalty of imprisonment was a possibility. The courts> of Illinois have never considered this precise issue. The only case at all in point in Illinois is City of Decatur v. Kushmer (1969), 43 Ill.2d 334, 253 N.E.2d 425, in which the supreme court held that a trial before a non-lawyer magistrate (now known as associate judges) for an offense punishable by a fine only did not violate due process. The courts> in other jurisdictions have passed upon this issue and are somewhat evenly divided as to whether a non-lawyer judge may hear a case involving possible imprisonment. The leading case supporting the proposition that a non-lawyer judge may not hear such a case is Gordon v. Justice Court (1974), 12 Cal.3d 323, 332, 525 P.2d 72, 78, 115 Cal.Rptr. 632, 638, in which the court stated:

"Since our legal system regards denial of counsel as a denial of fundamental fairness, it logically follows that the failure to provide a judge qualified to comprehend and utilize counsel's legal arguments likewise must be considered a denial of due process."

The court there points out that several States have found that the use of non-attorney judges is consistent with the demands of due ...

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