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People v. Althide





APPEAL from the Circuit Court of Hancock County; the Hon. U.S. COLLINS and the Hon. SCOTT I. KLUKOS, Judges, presiding.


Following a jury trial in the Circuit Court of Hancock County, defendant was convicted of theft over $150. He was sentenced to probation for one year and ordered to pay restitution of $440 and a fine of $2,000.

The undisputed facts of this case are relatively simple. At about 1 a.m. on April 23, 1976, four men, Bret Clay Wildrick, Brad Rettig, Seldon Conover and Robin Brotherton, stole eight hogs from the farm of Harold Brackensick. Somewhere between 1 a.m. and 2 a.m. on the same night three of the men, Wildrick, Rettig and Conover, sold eight hogs to the defendant, Gail Althide, a self-employed area farmer. Defendant was charged with theft under section 16-1(d)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 16-1(d)(1)), which provides:

"§ 16-1. Theft.

A person commits theft when he knowingly:

(d) Obtains control over stolen property knowing the property to have been stolen by another or under such circumstances as would reasonably induce him to believe that the property was stolen, and

(1) Intends to deprive the owner permanently of the use or benefit of the property; * * *."

Two jury trials were held, the first ending with the jury unable to reach a verdict. The sole contested factual issue at both trials was whether defendant knew or should have known the hogs were stolen when he bought them.

Harold Brackensick testified that the eight hogs stolen from his farm weighed between 100 and 165 pounds and were valued at a total of about $480. Defendant, on the other hand, testified the hogs he bought for $180 weighed between 50 and 75 pounds and were of generally poor quality. He said $180 was a reasonable price for the hogs he bought and that he had no idea they were stolen. Prior to defendant's first trial each of the four men who originally stole the hogs pled guilty to theft and was sentenced to one year probation and ordered to pay a $250 fine. All four men testified for the State in the case at bar. Bret Wildrick, to whom defendant's $180 check was made payable, and the only one of the men who actually conversed with defendant on the night in question, testified that defendant did not ask where the men had gotten the hogs, but did ask "if anybody was with us or followed us." Wildrick estimated the hogs weighed between 110 and 125 pounds. Two of the other men, Conover and Brotherton, testified the hogs weighed between 100 and 125 pounds, but Brad Rettig said the hogs were smaller, weighing between 50 and 100 pounds. Defendant presented testimony from two area farmers who said they had sold hogs to defendant in the later evening hours, 9 to 9:30 p.m., and one of the witnesses testified he knew of occasions when the defendant worked as late as 2 a.m. during the busy spring season. The jury returned a guilty verdict, and defendant appeals raising three issues for review.

Defendant contends he was denied his right to a speedy trial. Section 103-5(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 103-5(b)) provides that a defendant who has been released on bail must be tried within 160 days from the date he demands trial. (Ill. Rev. Stat. 1975, ch. 38, par. 103-5(b).) Defendant in the case at bar did not make a specific demand for a speedy trial, but he did request a jury trial and he claims that request should be considered sufficient to meet the demand requirements of section 103-5(b).

• 1 This argument has been considered and rejected by this and other courts> of this State. (People v. Baskin (1967), 38 Ill.2d 141, 230 N.E.2d 208; People v. O'Connor (1st Dist. 1978), 66 Ill. App.3d 786, 384 N.E.2d 149; People v. Dimond (3d Dist. 1977), 54 Ill. App.3d 146, 369 N.E.2d 383; People v. Wyatt (1st Dist. 1977), 47 Ill. App.3d 686, 365 N.E.2d 373.) In order to commence the running of the 160-day period the defendant must make a demand for trial which is clear, unequivocal and apparent from the record of the case. (People v. Schoo (2d Dist. 1977), 55 Ill. App.3d 163, 371 N.E.2d 86.) A defendant's request for a jury trial does not meet these requirements. As our supreme court has stated, "The original request for a jury trial cannot be considered as a demand for immediate trial, but only a demand that when trial was held it would be before a jury." (Baskin, 38 Ill.2d 141, 145.) Defendant notes that this case was set for trial at a time earlier than that at which it was actually tried, but that fact is of no significance to our determination of this issue. No unequivocal demand for trial was made in this case; therefore, the 160-day period did not begin to run and no violation of defendant's rights under 103-5 could have occurred. Schoo; O'Connor.

• 2 Defendant contends the evidence was insufficient to prove beyond a reasonable doubt that he possessed the requisite guilty knowledge at the time he purchased the stolen hogs. Guilty knowledge under section (d) of our theft statute may be established by proof that the accused actually knew the property was stolen or "may be inferred from all of the facts and circumstances which would induce belief in the mind of a reasonable person that the property was stolen and which would be sufficient to induce in the mind of the accused a like belief." People v. Philyaw (2d Dist. 1975, 34 Ill. App.3d 616, 339 N.E.2d 461; Ill. Rev. Stat. 1975, ch. 38, par. 16-1(d)(1).

• 3 We believe the evidence in the present case is sufficient to sustain the jury's verdict. The State's evidence indicated defendant purchased the hogs in question at an unusually late hour, 2 a.m., without inquiry as to their source of ownership, and at a price of about 38 percent of their estimated value. Similar factors have been specifically noted by courts> of review as indicative of the necessary guilty knowledge. (People v. Stewart (1960), 20 Ill.2d 387, 169 N.E.2d 796; Philyaw.) Defendant denied knowing the hogs were stolen and he claimed he paid a reasonable price for them. But, the effect of such a denial and claim of innocence is only to raise a question for the jury. In People v. Wysocki (1960), 20 Ill.2d 62, 169 N.E.2d 264, where the defendant similarly claimed the evidence was insufficient to establish his guilty knowledge, our supreme court stated:

"It is true defendant himself denied guilty knowledge, actual or otherwise, but the conflict thus raised goes only to a determination of the credibility of the witnesses, a function long committed to the trial court, or jury, which hears and sees the witnesses and is better equipped to evaluate their demeanor, sincerity, and the weight to be afforded their testimony than is a court of review. On review the judgment of the court or jury in such respect will not be disturbed unless it is plainly apparent that an injustice has ...

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