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People v. Neumann





APPEAL from the Circuit Court of Hancock County; the Hon. U.S. COLLINS, Judge, presiding.


Rehearing denied October 11, 1979.

Defendant Glenn E. Neumann appeals from a conviction of misdemeanor theft through assertion of unauthorized control over property of a value of less than $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 conviction followed a trial by jury which found defendant guilty of the charge. The circuit judge of Hancock County in the case sentenced defendant to six months' imprisonment and ordered him to pay court costs.

The record discloses that on Friday morning, July 9, 1976, at approximately 7:30 a.m., Roy Edward Haas, owner of a farm one mile north of Powellton in Hancock County found the gate to his hog pen open and discovered tire tracks leading to the pen. Haas found 20 hogs, valued at $60 each, were missing.

In the trial, in response to the prosecutor's question as to where he was on July 9, 1976, Alfred Hempen (charged jointly in the theft) testified that he was out looking for hogs to steal. He said that he had been with John Habben that day and Habben and the defendant that evening. Hempen testified that he, Habben and defendant left that evening in defendant's truck. They drove to a hog lot about one mile north of Powellton and arrived there at approximately 12:30 to 1 (at night). Habben and Hempen then loaded the hogs onto the truck as defendant stood beside it. The three then drove back to Habben's place and unloaded the hogs. Hempen testified that the hogs were sold the very next day — Saturday (apparently meaning July 10), stated by Hempen to be "the same day we dropped them off at John's [Habben]."

On cross-examination, Hempen stated that he was testifying because of a deal he had made with the State. He added that he had pleaded guilty to another theft charge as to hogs from the same victim, Haas, which he committed on June 17, 1976, accompanied by Habben.

Defendant, in a written statement made to police before the trial, admitted participating in the theft of the hogs, which, according to the statement, occurred "on or about July 9, 1976." That statement was admitted into evidence.

Defendant testified at his trial and there denied that he had been with Hempen and Habben when they stole the hogs and also denied that he had stolen the hogs. He testified that at the time of the offense he was at his mother's house in Salem, Missouri, approximately 225 miles from his Hancock County home. He also testified that all day July 9, 1976, he was at home with his wife (then his girlfriend) Keela Neumann. Defendant's mother testified that defendant had come to Salem on his motorcycle for the July 4 weekend, but had trouble with the motorcycle. She stated that as a result of the trouble with the motorcycle, defendant returned to Hancock County in her car on Monday, July 5, 1976. Defendant's mother testified that defendant returned to Salem from Hancock County at approximately 10:15 p.m. on July 9, 1976. She said that it takes 5 to 6 hours to drive to Salem from Hancock County. Defendant's mother said that defendant stayed with her until after dinner on Sunday, July 11, 1976.

Defendant's wife, Keela Neumann, testified that she and defendant were asleep at 12:01 a.m. on July 9, 1976. She added that defendant did not go to work on July 9 and that she left with defendant for Salem at 4 p.m. on July 9, arriving in Salem at 10:30 p.m.

On November 5, 1976, at approximately 10:55 p.m., Sheriff Dick Yager arrived at defendant's home and took defendant to the Hancock County jail in Carthage to interrogate him about the hog theft. Defendant stated, in the trial, that when the sheriff "arrested" him, the sheriff told him he would be able to return home within an hour. Defendant's wife testified that upon leaving, defendant told her he was going to Carthage with the sheriff and would return in an hour. The sheriff testified that he told defendant, in response to defendant's question about how long the interrogation would last, that he would be allowed to return home in an hour "if everything turned out all right." The sheriff added that before going to defendant's house, he was certain defendant had committed the theft, and that the interrogation couldn't possibly turn out "all right" for defendant. Defendant was not permitted to return home in an hour.

Defendant also testified that during the interrogation at the jail, the sheriff told him that he would not be charged with a felony and would be allowed to go home within an hour if he signed a confession. Defendant added that the sheriff wanted him to cooperate in building a case against Habben.

Sheriff Yager testified that he did not make any "deal" with defendant and that he did not promise to charge defendant with a misdemeanor or to let him go within an hour in return for defendant's signing the confession. The sheriff, however, conceded that he told defendant "that a misdemeanor would suffice as far as I was concerned but that would have to be squared with the State's Attorney." The sheriff added that Habben was believed to be the leader of the theft ring.

The sheriff testified also that before interrogating defendant, he advised defendant of his Miranda rights. Defendant also testified that the sheriff had read the constitutional rights form to him. According to the sheriff, defendant consented to the interrogation and executed a signed written statement, confessing to the theft of hogs. Defendant was booked and held in jail on a felony theft charge because he was unable to post bond. Three days later a formal charge of misdemeanor theft was filed against defendant.

Prior to the trial, defendant moved to suppress the statement he made on November 5, 1976, on the ground, among others, that the statement was elicited from him by what he described as "promises and mental coercion," rendering the ...

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