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People v. Bournes

OPINION FILED DECEMBER 13, 1977.

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

v.

THOMAS C. BOURNES, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Du Page County; the Hon. BRUCE R. FAWELL, Judge, presiding.

MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:

On November 12, 1975, as a result of plea negotiations in which the State's Attorney agreed to recommend 1-3 years in the Penitentiary, the defendant pled guilty to burglary of a motor vehicle in violation of section 19-1(a) of the Criminal Code. (Ill. Rev. Stat. 1973, ch. 38, par. 19-1(a)). The court heard the undisputed facts that the defendant was apprehended in the act of unbolting and displacing a citizen's band (C.B.) radio from a motor vehicle after forcibly entering it. The defendant waived a hearing in aggravation and mitigation but nonetheless the court ordered the same. On December 16, 1975, the court considered the presentence report, refused to follow the State's recommendation of 1-3 years, and sentenced the defendant to 6-18 years in the penitentiary.

Thereafter, the defendant filed a motion to withdraw his plea of guilty and vacate the judgment, as required by Supreme Court Rule 604(d) (Ill. Rev. Stat. 1973, ch. 110A, par. 604(d)), and later filed a separate motion in arrest of judgment. On March 17, 1976, a hearing was had on both of defendant's motions. In support of these motions the defendant argued that he was erroneously charged with burglary under section 19-1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 19-1(a)) because the offense committed by him comprised only misdemeanor "tampering" in violation of section 4-102 of the Vehicle Code (Ill. Rev. Stat. 1973, ch. 95 1/2, par. 4-102(a)). Based on this major premise, the defendant further contended that the indictment filed against him was defective because it did not negate the exception in the burglary statute which excludes offenses described in section 4-102 of the Illinois Vehicle Code. Also based on his major premise, the defendant contended that, pursuant to Supreme Court Rule 402, the trial judge improperly admonished him concerning the provisions of the burglary statute rather than the tampering statute. In addition to the arguments referring to the appropriate offense, the defendant went on to contend that the trial court did not consider the applicability of the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1975, ch. 91 1/2, par. 120.1 et seq.). Finally, the defendant contended that the sentence imposed by the trial court was excessive. The trial court heard and weighed the arguments of counsel and denied both motions of the defendant. The defendant appeals, raising these same issues for our consideration.

We turn to the initial arguments of the defendant concerning the appropriateness of the charges against him and the allegedly erroneous consequences thereof. The heart of the defendant's position is that the acts committed by him constituted the offense of "tampering" rather than burglary. The statutes cited by the defendant read, in pertinent part, as follows:

"A person commits burglary when without authority he knowingly enters * * * a * * * motor vehicle as defined in The Illinois Vehicle Code * * * or any part thereof, with intent to commit therein a felony or theft. This offense shall not include the offenses set out in Section 4-102 of the Illinois Vehicle Code." Ill. Rev. Stat. 1973, ch. 38, par. 19-1(a).

"It is a violation of this Chapter for: (a) A person, without authority to do so, to damage a vehicle or to damage or remove any part or component of a vehicle." Ill. Rev. Stat. 1973, ch. 95 1/2, par. 4-102(a).

"It is a violation of this Chapter for * * * (b) A person, without authority to do so, to tamper with a vehicle or go in it, on it, or work or attempt to work any of its parts or components, or set or attempt to set it in motion." Ill. Rev. Stat. 1973, ch. 95 1/2, par. 4-102(b).

In essence, defendant advances the proposition that his acts on the night of July 25, 1975, constituted the removal of a "part" of a vehicle. He places great weight on three alternative arguments in this regard. First, he argues that a C.B. radio becomes a "part" of a motor vehicle through the doctrine of accession. Second, he maintains that a definition of the term "part" includes "a fragment" and not solely a "substantive member" of the whole and that a C.B. radio is just such a fragment of a motor vehicle. Third, he contends that the definition of a "component part" in section 4-100 of the Illinois Vehicle Code (Ill. Rev. Stat. 1973, ch. 95 1/2, par. 4-100) includes items with identification numbers, and the C.B. radio in question is presumed to have such an identification number making it a "part." Based on his construction of the statutes cited above, the defendant contends that the indictment and the trial court's admonishment to him under Supreme Court Rule 402(a) are reversibly erroneous.

To settle what is essentially a question of statutory interpretation in a case of first impression we have carefully examined the briefs and arguments of the parties and those statutes raised by the defendant, as well as other related statutes.

• 1 The principles of statutory construction have long been applied by the courts> of this State. It is a judicial function to determine and follow the intention of legislative acts. (Lipsey v. Michael Reese Hospital (1970), 46 Ill.2d 32, 262 N.E.2d 450.) In ascertaining the legislature's intention, the entire statute must be considered, as well as the evil to be remedied and the object to be attained. (People v. Bratcher (1976), 63 Ill.2d 534, 349 N.E.2d 31.) The consequences resulting from various constructions of an act must also be taken into consideration. (People ex rel. Holland v. Edelman (1975), 27 Ill. App.3d 793, 327 N.E.2d 338.) It is to be presumed that the legislature in passing legislation did not intend absurdity, inconvenience or injustice. (Illinois Crime Investigating Com. v. Buccieri (1967), 36 Ill.2d 556, 224 N.E.2d 236, cert. denied (1967), 389 U.S. 848, 19 L.Ed.2d 117, 88 S.Ct. 74.) Therefore, where several constructions may be placed upon a statute, the court should select that which leads to a logical result and avoid those which would be absurd. Board of Education v. Community High School District Number 211 (1967), 89 Ill. App.2d 481, 232 N.E.2d 316.

• 2 In the instant case the defendant contends that entry into a motor vehicle to commit the theft of a C.B. radio which is attached to or built into the vehicle constitutes the misdemeanor offense of "tampering" while entry into the same vehicle to commit the theft of the same C.B. radio lying unattached on the front seat is the offense of burglary. We find that this construction of the statutes at hand is absurd on its face and would be manifestly unjust. A clear examination of the statutory scheme enacted by the legislature yields quite a different result. The locus of such an examination is the proper construction of the word "remove" as it appears in section 4-102(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1973, ch. 95 1/2, par. 4-102(a)).

• 3 We take note of the fact that "remove" is defined in section 4-100 of the Illinois Vehicle Code (Ill. Rev. Stat. 1973, ch. 95 1/2, par. 4-100) as: "To remove, deface, cover or destroy." While this definition is appropriate and necessary for many of the provisions of section 4-101 et seq. of the Illinois Vehicle Code (Ill. Rev. Stat. 1973, ch. 95 1/2, par. 4-101 et seq.), we feel that in the context of this case, and specifically in relation to the provisions of section 4-102(a), such a definition is ambiguous and inappropriate. As a consequence, we hold that "remove" for the purpose of section 4-102(a) means to take or move a part or component from its proper place in relation to a motor vehicle without damage to either, and without intent to commit a theft within the meaning of section 16-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 16-1). We further hold that the clear legislative intent of section 4-102(a) is to prevent or punish the commission of malicious mischief upon a motor vehicle. Since such malicious mischief may be performed by the damaging of a vehicle or its parts, or by the complete or partial disassembly of a vehicle without "damage" per se, the inclusion of the term "remove" as we have defined it is a necessary element of this preventive and/or punitive provision. We also note that our definition of the term "remove" in the context of section 4-102(a) does not conflict with, or render ambiguous other uses of the term "remove" within the Illinois Vehicle Code.

The holdings above regarding the proper construction of section 4-102(a) make the defendant's arguments concerning the construction of the word "part" inappropriate and unnecessary to the determination of this case. Furthermore, such a construction of the term "remove" leads to a logical and comprehensive statutory scheme concerning motor vehicles and avoids the absurd. As an example of the internal logic of this scheme as it exists with our construction, we note that section 19-1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 19-1(a)) is aimed at preventing the unauthorized entry into and theft from or commission of a felony in, a motor vehicle. Section 21-2 of the Criminal Code of 1961 prevents the mere unauthorized entry into a vehicle. Section 4-102(a) of the Illinois Vehicle Code prevents the malicious damage or disassembly of a vehicle. Section 4-102(b) prevents the unauthorized entry into a vehicle linked with the unauthorized working of the controls therein. Each of these statutes deals with a specific and uniquely identifiable evil and attempts to provide an appropriate remedy for each. Thus, we have a comprehensive and enlightened legislative scheme rather than a conflicting, absurd and unjust scheme which would be the logical result of the defendant's proposed statutory construction.

• 4 We therefore specifically hold that since the defendant admitted at trial, and in his argument before this court, that he entered the vehicle in question with the intent to commit the theft of an object therein, he was committing the offense of burglary and not "tampering." Thus, we further ...


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