APPEAL from the Circuit Court of Adams County; the Hon.
RICHARD F. SCHOLZ, JR., Judge, presiding.
MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
Defendant appeals his conviction of theft (Ill. Rev. Stat. 1977, ch. 38, par. 16-1) upon jury verdict and the imposed sentence of three years. Upon appeal it is urged that the evidence was insufficient to support the conviction of the offense charged; that it was error to introduce certain handwriting samples which defendant had given to defense counsel for the purpose of examination by an expert witness and which were thereafter placed in evidence when the expert testified for the prosecution; that defendant was denied a fair trial by reason of the prosecution's prejudicial argument, and that the presentence report was insufficient in that it failed to include a plan based upon local resources as an alternative to imprisonment.
"[O]n or about June 14, 1977 CLIFFORD J. FOWLER committed the offense of Theft in that he knowingly by deception gained unauthorized control over the property of * * * to-wit: United States currency, having a value in excess of $150, and of the value of $270, with the intent to permanently deprive the owner of the use or benefit of said property, in violation of Illinois Revised Statutes, Chapter 38, Section 16-1."
Defendant, as C.J. Fowler, was the payee of a check issued by the State of Illinois upon the unemployment insurance account. The check was dated May 13, 1977, and shortly thereafter the check endorsed "Clifford J. Fowler" was presented at a food market and currency in the stated amount was delivered to the endorsing individual. No testimony identified defendant as the person presenting the check. Defendant testified and denied that he had endorsed the check or received the face amount delivered at the market.
It is admitted that on June 13, 1977, defendant, as Clifford J. Fowler, executed an affidavit of his nonendorsement of the check. The affidavit identified the check by number and date. As the result of this procedure, the account of the market which cashed the check was charged back with the face amount and was thus deprived of $270.
Section 16-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 16-1) provides, in pertinent part:
"A person commits theft when he knowingly:
(a) Obtains or exerts unauthorized control over property of the owner; or
(b) Obtains by deception control over property of the owner; or
(1) Intends to deprive the owner permanently of the use or benefit of the property; and
(2) Knowingly uses, conceals or abandons the property in such manner as to deprive the owner permanently of such use or benefit; or
(3) Uses, conceals, or abandons the property knowing such use, concealment or abandonment probably will deprive the owner permanently of such use or benefit."
On appeal, defendant for the first time raises the issue that assuming, arguendo, that defendant endorsed the check and received the money, the information does not validly charge theft under the statute. While the information did not specify a subparagraph, it is contended that the information actually charged theft under section 16-1(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 16-1(b)), where the accused "Obtains by deception control over property of the owner," and that such is a separate and distinct offense from section 16-1(a) where the accused "Obtains or exerts unauthorized control over property of the owner."
It is noted that section 16-1(b) uses only the word "Obtains," while section 16-1(a) employs the words "Obtains or exerts." The theme argued is that while the exerting of control may be included or be considered synonymous with retention of control, the allegation "Obtains," standing alone, does not encompass retention but is limited to the act of acquiring. It is contended that such is a significant difference for the reason that the defendant obtained the money by means of a valid endorsement of a valid check and that any act of deception shown by the evidence would be the signing of the affidavit of nonendorsement some days later. The conclusion argued is that the retention of the proceeds of the check by the act of signing the affidavit would come within the language of section 16-1(a), i.e., "exerts unauthorized control," but would not constitute the act "Obtains by deception." From such premise, it is concluded that the act of deception must occur contemporaneously with the obtaining of the property but that here the evidence shows the contrary with a result that there is no valid charge of theft.
We note that section 16-1(b) uses the language "control over property" rather than "unauthorized control over property" as is provided in section 16-1(a). If there be an intended distinction in the language used, we conclude that it renders ineffective the argument that there was no theft when the money was obtained through a valid instrument upon a valid endorsement, for by such distinction the language of section 16-1(b) contemplates the offense where there is an initial authorized possession or control obtained.
Article 15 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 15-1 et seq.) states definitions of the terms used in the statutes concerning offenses against property. With regard to the several terms placed in issue by the argument of defendant, we consider the following definitions. As to the word "Obtain", section 15-7 provides:
"(a) In relation to property, to bring about a transfer of interest or possession, whether to the offender or to another * * *." (Emphasis added.)
"[T]he phrase `obtains or exerts control' over property, includes but is not limited to the taking, carrying away, or the sale, conveyance, or transfer of title to, or interest ...