APPEAL from the Circuit Court of Montgomery County; the Hon.
PAUL M. HICKMAN, Judge, presiding.
MR. JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:
The defendant, Larry Steinmann, appeals from a judgment of the circuit court of Montgomery County entered upon a jury verdict finding him guilty of theft and official misconduct. He was subsequently sentenced to a two-year conditional discharge plus a fine of $500 on the theft conviction and a three-year conditional discharge plus a $1000 fine on the official misconduct conviction.
On the evening of August 10, 1973, defendant, then a lieutenant on the Litchfield Police Department, was dispatched to a location near Libbra's Tavern in Litchfield where he apprehended Harry Busby, the city's street and water superintendent. Earlier that evening Busby's wife had phoned the station to report that her husband had become intoxicated and had threatened to shoot their son-in-law. Upon arriving at the scene, defendant and two accompanying officers found Busby semiconscious and sitting in a parked car. Busby, who was cooperative in all respects, handed the defendant a loaded Smith & Wesson .38-caliber revolver. The officers present then discussed the matter and decided to allow Busby to return home. That night the defendant placed the weapon in his personal locker at the police station, since no common evidence locker then existed. He instructed the dispatcher to report the incident in the daily log.
On August 14, 1973, a meeting was held at the Litchfield City Hall to determine what action should be taken against Harry Busby. The defendant, the city attorney, the chief of police, the mayor, a city councilman and Harry Busby attended the informal meeting. It was the consensus of all present that Busby should be retained as street and water commissioner, that no charges should be filed in relation to the August 10, 1973, incident, but that Busby had no need for a gun. As the meeting adjourned it was suggested that Busby's gun be withheld for a period of time.
The evidence is conflicting as to the exact conversation at this point. The defendant testified at trial that the mayor and city attorney advised a tearful Busby that he had no business with the gun and recommended that he give it to the defendant, whereupon Busby nodded and shook the defendant's hand. The defendant believed that Busby had given him the gun outright. The chief of police testified that at the end of the meeting City Attorney Paul McWilliams approached Busby and said, "What do you need the gun for anyway? Why don't you just give it to him." Chief Dolahite was uncertain whether the last word was "him" or "them." At that time Busby and the defendant shook hands and the meeting ended. Busby, on the other hand, could not recall much of the conversation, but stated at trial that he never intended to permanently part with the gun. The mayor's testimony substantiated that the common desire was to withhold the gun from Busby until things quieted down with his son-in-law. He personally instructed the defendant not to return Busby's gun at that time. The mayor stated that although he did not then contemplate what should be done with the gun in the future, he did not intend for the defendant to keep it as his own property.
After leaving the Litchfield City Hall, the defendant met a fellow officer, Richard Elledge, who inquired about the meeting. Defendant told Elledge that "Well, Busby give [sic] me the gun." The defendant then took the gun home and in the fall of 1973 used it as a back-up service revolver while his was being repaired. Other police officers, the dispatcher in particular, noticed that defendant was using the gun sometime after August 14, 1973. The defendant stated that he carried the gun all through the following winter. In addition, he used it to practice for the officers' mandatory qualifications shoot in the spring of 1974.
The events prompting the indictment in this case occurred on December 24, 1975, during a department Christmas party held at the police station. At approximately 2 o'clock that afternoon, prior to the defendant's 3 to 11 shift, the defendant and another officer, Terry Hand, agreed to trade pistols. The defendant gave the .38-caliber revolver he had received from Busby plus $15 in return for Hand's .22-caliber revolver. Upon learning of the Busby incident a few days later, however, Hand phoned the defendant at 12 o'clock, midnight, and questioned him about the ownership of the gun. Both Hand and the defendant testified that the defendant then admitted that he had gotten the gun from Busby, that he had no receipt, but that if Hand did not approve of the transaction the defendant would willingly retrade the gun. When Hand asked what he should do if Busby requested the gun from him, the defendant responded, "Well, just give him the gun back and I will give you the .22 back." Hand proceeded to investigate further and discovered a receipt in the police file reflecting that the gun was obtained from Harry Busby on August 10, 1973. The receipt was dated August 14, 1973, and was signed by the defendant. Hand later interviewed Busby who stated that he never intended to make a gift of the gun and expected to get it back some day. Armed with this information, Hand contacted the sheriff and on December 31, 1975, the Montgomery County grand jury issued a three-count indictment against the defendant. On February 3, 1977, a jury found defendant guilty of one count of theft and two counts of official misconduct. The court subsequently set aside the guilty verdict on count III for official misconduct since it determined the indictment had failed to charge an offense.
As substantial questions are raised concerning the effect of the other two counts of the indictment, we quote them at length:
The Grand Jury charges: That on the 24th day of December 1975, in Mongtomery County, Illinois LARRY STEINMAN [sic] committed the offense of THEFT in that Larry Steinman [sic] did knowingly exert unauthorized control over property of Harry Busby, being a Smith & Wesson .38 caliber revolver serial number D523362, having a total value of less than $150, and used the said property in such a manner as to deprive the owner permanently of the use and benefit of said property in that he transferred ownership of said firearm to Terry Hand without the authority of Harry Busby and without legal authority in violation of Chapter 38, Paragraph 16-1(a)(2) * * *.
The Grand Jury further charges: That on the 24th day of December 1975, in Montgomery County, Illinois LARRY STEINMAN [sic] committed the offense of OFFICIAL MISCONDUCT in that Larry Steinman [sic], a police officer of the City of Litchfield, Illinois did knowingly perform an act which he knew that he was forbidden by law to perform in that acting in his official capacity as a Litchfield, Illinois police officer, he seized a certain Smith & Wesson .38 caliber revolver serial number D523362 from Harry Busby, said firearm being the property of Harry Busby and that after seizing said weapon he sold said weapon to Terry Hand without the authority of Harry Busby and contrary to the laws of the State of Illinois in violation of Chapter 38 Paragraph 33-3(b) * * *."
Defendant contends that the evidence was insufficient to prove him guilty beyond a reasonable doubt. Throughout the trial the defendant maintained that he honestly, though mistakenly, believed the gun had been given to him for his personal use; thus, the "mens rea" necessary to convict him of a crime had not been adequately shown. The State argues that the defendant's words and actions negate such an interpretation. Basically, the State relies on two statements allegedly made by the defendant on August 10, 1973, and on December 24, 1975. After returning to the station following the Busby incident on August 10, 1973, the police dispatcher, John Shade, questioned the defendant about the future disposition of the gun, to which the defendant allegedly responded that he did not know, he might possibly keep it. This statement is not helpful in ascertaining defendant's guilty state of mind for not only is it susceptible to many interpretations, but shortly thereafter the defendant ordered a report of the incident, notified the chief of police and attended the August 14, 1973, meeting. The second "incriminating" statement cited by the State was made to another police officer who witnessed the December 24, 1975, transfer of the .38-caliber revolver. When asked where he had obtained the gun, defendant answered in effect that it was none of the officer's business. Again, this statement is inconclusive since defendant had never attempted to hide the facts surrounding his acquisition of the revolver; indeed, on August 14, 1973, he told Richard Elledge that Busby had given him the gun and when questioned by Hand nearly 2 1/2 years later, defendant readily admitted he had received the gun from Busby.
Finally, the State alleges that the defendant's belief that the gun had actually been given to him was incredible in light of his experience on the police force. While defendant's misunderstanding of Busby's intentions may be somewhat unjustified, from the evidence we cannot say and do not think a reasonable person could say that defendant's actions were dishonest. Surely the sequence of events in this case was atypical from the outset. There was an understandable attempt by all ...