APPEAL from the Circuit Court of Mercer County; the Hon. JOHN
DONALD O'SHEA, Judge, presiding.
MR. PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
Defendant James R. Hajostek appeals from convictions, of misdemeanor theft and official misconduct, by the Circuit Court of Mercer County in a bench trial. Defendant was sentenced to concurrent terms of probation of five years for official misconduct and two years for misdemeanor theft, with both terms of probation conditioned on service of four months imprisonment followed by service of eight months imprisonment on weekends. On appeal, defendant argues that (1) defendant was unconstitutionally deprived of an accrued right to be prosecuted only after indictment by grand jury, (2) the State failed to prove defendant's guilt beyond a reasonable doubt, (3) the convictions for theft and official misconduct arose out of the same acts or transaction, and that both convictions, therefore, cannot stand, and (4) the trial court erred in conditioning the concurrent terms of probation upon the service of both a term of imprisonment and a term of periodic imprisonment.
On July 3, 1975, defendant was charged by information with felony theft offenses, the time of the offenses being described as from May 19, 1975, to June 26, 1975. On December 15, 1975, defendant was further charged by information with official misconduct, allegedly committed on June 13, 1975. The two charges were consolidated for a bench trial, which began on December 29, 1975.
At the trial the evidence established that during May and June of 1975 defendant worked for Duncan Township as a truck driver. Defendant's duties included driving a township truck to one of two quarries, picking up rock and spreading the rock on township roads. Defendant would sign a receipt for rock picked up at the quarries, and the rock would be paid for by the county, which would subsequently charge the township.
In the course of his duties as a township employee, defendant used a white 1971 Chevrolet truck owned by the township, with an "M" series license plate. It appears that the truck, when not in use, was parked at the township supervisor's house with the keys left in the ignition. Defendant, who chose his own working hours, would use the truck as needed to perform his township duties. Township officials testified at trial that defendant did not have authority to deliver township gravel to private individuals and did not have authority to use the township truck for private purposes.
During the time period alleged in the informations, all rock pickups at the Mercer County Stone and Coal quarry for Duncan Township were made by defendant, for which he drove the white township truck. Testimony indicated that at no time, during the relevant time period, did defendant pick up rock from the quarry in any truck other than the white township truck or in any other capacity than as a township employee. Evidence established that defendant picked up numerous loads of rock at the quarry on June 2, 3, 5, 16 and 26, 1975.
It appears that Eldon Freeze, Sr., owned an airstrip and operated a service station in Preemption Township. In May and June, 1975, Freeze was having a road and a runway on his property improved, and was for these purposes buying loads of rock. Sometime in May 1975 defendant and Freeze agreed to the purchase from defendant of crushed rock and for delivery to Freeze's premises at a cost of $20 per load. Six or seven loads of rock were apparently delivered under this agreement, and Freeze made payment to defendant by checks, which were admitted into evidence. Rock deliveries to Freeze's property, made by a truck matching the description of the white township truck and driven by a male, were observed on June 2, 3, 13, and 26, 1975.
On June 26, 1975, Deputy Sheriff Feehan went to the Freeze property to investigate a reported delivery of rock there. The officer observed fresh rock on the premises and also saw tire tracks on the property. He took a sample from the fresh rock. Expert testimony at trial indicated that, because of the size, color and composition of the rock sample, the sample came from the Mercer County Stone and Coal quarry.
After hearing the evidence, the trial court found defendant guilty of misdemeanor theft and official misconduct. Defendant was sentenced to concurrent terms of probation for two years for misdemeanor theft and of five years for official misconduct, conditioned on service of four months imprisonment followed by eight months imprisonment on weekends.
• 1 Defendant argues on this appeal that the application of an amendment to section 111-2 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 111-2) effective October 1, 1975 (which amendment authorized the commencement of felony prosecutions by indictment or information, so as to allow prosecution by information against defendant for alleged crimes committed prior to the effective date of the amendment) violates State and Federal prohibitions against ex post facto legislation and unconstitutionally violated defendant's right to be prosecuted by indictment. Defendant, however, filed a post-trial motion in the trial court, but did not there challenge the propriety of the State proceeding by information. As the Illinois Supreme Court stated in People v. Pickett (1973), 54 Ill.2d 280, 282, 296 N.E.2d 856:
"The general rule followed by this court is that the failure by the defendant to raise an issue in the written motion for a new trial constitutes a waiver of that issue and it cannot be urged as a ground for reversal on review. [Citations.] This waiver rule applies to constitutional questions as well as to other issues."
Thus defendant has waived this issue for purposes of this appeal. We additionally note that in People v. Myers (3d Dist. 1977), 44 Ill. App.3d 860, 359 N.E.2d 197, we recently considered issues essentially similar to those defendant here attempts to raise, and determined that construction of the amendment to section 111-2 of the Code of Criminal Procedure of 1963 to allow prosecution by information after the effective date of the amendment, for offenses allegedly occurring prior to the effective date of the amendment, was constitutionally and statutorily proper. We further note with respect to the information filed prior to the effective date of the amendment to section 111-2, that the Illinois Appellate Court for the Fourth District recently held in People v. Sims (4th Dist. 1977), 47 Ill. App.3d 215, 361 N.E.2d 1153, that such an information is valid and becomes effective with the effective date of the amendment.
• 2 Defendant next argues that the State failed to prove his guilt beyond a reasonable doubt. In People v. Carpi (3d Dist. 1976), 44 Ill. App.3d 364, 358 N.E.2d 355, this court stated, with regard to a trial court's determination in a bench trial (at 44 Ill. App.3d 364, 369):
"The trial judge in this case had the opportunity to view the witnesses and hear their testimony and, such determination would not be lightly set aside, but it is always the duty of this Court to examine the evidence in a criminal case, and if it is so unsatisfactory as to raise a serious doubt of defendant's guilt, the conviction will be reversed. (People v. Griffin (1st Dist. 1975), 29 Ill. App.3d 581, 331 N.E.2d 121.) The trial court as the trier of fact determines the credibility of witnesses and the weight to be given to their testimony and a finding of guilty by the trial court will be disturbed only where the evidence is so ...