APPEAL from the Circuit Court of Will County; the Hon. ANGELO
F. PISTILLI, Judge, presiding.
MR. PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 17, 1979.
Defendants Bradley Beauchemin, Roger Taylor, Donald Sanders and Arthur Casteneda appeal from convictions of having received stolen property of a value under $150 in violation of section 16-1(d)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 16-1(d)(1)). The information charging defendants with having received stolen property was filed in Will County, and, in a bench trial in that county, the trial court found all four defendants "guilty as charged." Post-trial motion was denied by the trial court, and defendants were sentenced to the following: imprisonment for Sanders (364 days), Taylor (364 days), and Casteneda (8 months). Beauchemin was sentenced to 1 year of probation. Defendants also filed a motion in arrest of judgment on the ground that the information charged defendants with theft by receiving stolen property and that allegations in the bill of particulars filed by the State specified that three of the four defendants were the original thieves who stole the automobile, which was the subject of the information, and that consequently, the defendants were not tried on a charge that was sufficient to support a conviction, since it charged that defendants were guilty of receiving stolen property and was supported and limited by a bill of particulars which stated that the defendants themselves stole the property. Defendants contend that, consequently, the charge of theft by "receiving" stolen property from themselves was an impossibility, and that the charge was rendered void.
The basic grounds for appeal, as outlined by the defendants, are (1) whether defendants were proven guilty beyond a reasonable doubt, of theft by receiving stolen property; (2) whether the trial court erred in failing to suppress the evidence taken from a garage and truck under the facts in this case, and (3) whether the judgment of the trial court convicting defendants of theft under $150 should have been set aside in response to the motion in arrest of judgment, since defendants were charged in the information with theft by receiving stolen property, where it is alleged in support in the bill of particulars that three of the four defendants were the original thieves, thus creating an impossibility under Illinois law.
All four of the defendants were charged by information with the specific crime of receiving stolen property. The information charged that defendants "* * * knowingly obtained control over certain stolen property * * * under such circumstances as would reasonably induce them to believe the property was stolen, and with the intent to deprive the owner permanently of the use and benefit of said property, in violation of chapter 38, section 16-1(d)(1) of Illinois Revised Statutes, 1975." A bill of particulars, filed by the State in response to defendant's motion stated, in part, that "Roger Taylor, Arthur Casteneda and Donald Sanders obtained and exerted unauthorized control over certain stolen property in that while acting together, they stole a 1977 Chevrolet stationwagon from Richard Ciercierski, drove said stolen property to a garage in Frankfort Township in Will County and dismantled said stolen property."
Defendants filed a pretrial motion to suppress certain evidence seized from a garage leased to the defendant Beauchemin and from a van driven by another of the defendants. The motion was denied.
The record discloses that Richard Ciercierski parked his 1977 blue Chevrolet stationwagon in a parking lot of Republic Steel Corporation in Chicago on the morning of March 11, 1977. At approximately 3:40 p.m., when Ciercierski looked for his automobile, he could not find it. At the trial, Ciercierski identified the car's license plates and bill of sale, as well as certain papers, which were in the automobile glove compartment, as belonging to Ciercierski at the time of the theft.
Defendant Casteneda testified, in the latter part of the trial, that he drove himself and the three other defendants to the area of the Republic Steel Corporation between 9 and 9:30 a.m. on March 11, 1977. He stopped his automobile near the steel mill and permitted Sanders and Taylor to leave and to walk the block and a half to the Republic Steel Corporation parking lot. Casteneda and Beauchemin, he said, remained behind acting as lookouts. Five to eight minutes later, Casteneda said he saw Taylor driving a blue Chevrolet stationwagon. On March 11, 1977, at approximately 4:40 p.m., a police officer saw defendant Taylor drive a 1977 blue Chevrolet stationwagon onto a farm adjacent to Sauk Trail in Frankfort Township, Will County. The police officer obtained the automobile's license number and determined that it had been stolen from Richard Ciercierski. The automobile was driven into a garage on the farm. The garage and the house on the farm were rented to Beauchemin.
From the time the stolen automobile was observed, by the officer, being driven into the garage rented by Beauchemin, until the time of the arrest of all four defendants the next day, the farm was kept under constant police surveillance. On the morning of March 12, certain police officers left the scene in order to secure a search warrant. The warrant was issued at 2:15 p.m. and the officers brought it to the farm at approximately 2:50 p.m.
Between noon and 1 p.m., defendants were arrested, without resistance, in the farm yard adjacent to the garage. At the time of defendants' arrest, the garage door was closed. Defendants testified that a few minutes after their arrest, a police officer opened the garage door and entered the garage. Later, a few other officers entered the garage. Individual defendants said that they saw officers remove a bolt cutter and papers from the garage.
Prior to making the arrest, police had observed defendant Taylor leave the farm in a van. Taylor returned in the van at the time the other three defendants were arrested and Taylor was also placed under arrest. Taylor's van had multiple combination locks on it.
Defendant Beauchemin's wife testified that she saw a police officer walk out of the garage with bolt cutters at approximately 1:30 p.m. and cut off a lock from the van. All the evidence sought to be suppressed was found in the garage except for the rear clip of the car, which was found in the van. (The "rear clip" is the portion of an automobile from the windshield rearward.) The police officers, on the contrary, testified that although the garage door was opened before the warrant arrived, no one entered the garage until after the warrant arrived. They testified that no evidence was seized until after the search warrant arrived. They also testified that Taylor's van was not opened or unlocked until after the warrant arrived.
At the conclusion of the trial, the trial judge entered an order stating that all four defendants were guilty in the "manner and form set forth in the information and bill of particulars." Defendants principally contend that because they were charged with theft by receiving stolen property in the manner as outlined herein, the State was required to prove that the property, over which defendants obtained control, had been stolen by another. Defendants contend that the failure of the State to prove this essential element is fatal to the State's case and requires reversal.
In view of our disposition of this cause with respect to defendants Taylor, Sanders and Casteneda, we believe that the issue raised as to these three defendants by the motion in arrest of judgment requires the reversal of judgments and sentences imposed upon such three defendants. The defendants were charged with receiving stolen property in an information which is limited and supported by a bill of particulars which recites that the three defendants, Taylor, Sanders and Casteneda, were guilty of the charge of receiving stolen property under subsection (d) referred to by virtue of the fact that they actually stole the automobile in question. No conviction, for receiving the automobile as stolen property, as against such defendants could be maintained by proof as outlined in the bill of particulars. As stated in People v. Adams (1st Dist. 1969), 113 Ill. App.2d 276, 283-84, 252 N.E.2d 65, since the prosecutor has elected to charge and prosecute the three named defendants under subsection (d), simple justice ...