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People v. Wurster





APPEAL from the Circuit Court of Tazewell County; the Hon. RICHARD E. EAGLETON, Judge, presiding.


Defendants, David and Linda Wurster, were convicted of theft by deception (Ill. Rev. Stat. 1975, ch. 38, par. 16-1(b)(1)) following a jury trial. David Wurster was sentenced to 2 to 6 years in prison and ordered to make full restitution. Linda Wurster was sentenced to a 4-year term of probation upon condition that she serve a 9-week term of periodic imprisonment and make restitution to the best of her ability. Defendants appeal from both the convictions and the sentences.

At the trial in October 1978, it was shown that in connection with a back injury, David Wurster had prosecuted a claim under the Workmen's Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.1 et seq.). David Wurster and Caterpillar, his employer, entered into a settlement agreement with respect to this claim whereby Caterpillar paid him $21,199.20.

Dale Evans testified on behalf of the State that some time in late June or early July, 1976, he had a conversation with defendants during which they discussed the fact that David Wurster had been off work for several days, that he was in danger of losing his job, and that he wanted a little more time off to take care of other matters. The discussion involved an injury that David Wurster was going to say he had. Evans testified that David Wurster said he had a friend who would corroborate his claim that he had injured himself at work. Defendants telephoned Caterpillar to schedule an appointment for David Wurster with one of its doctors. Linda Wurster suggested that if Evans "worked over" David before the appointment, his claim that he had injured himself would be more believable. Accordingly, Evans administered a beating to David Wurster, striking him several times about the lower back with his hand, which was wrapped in a towel. Evans testified that David Wurster went to Caterpillar's doctor later on the same day he was beaten. He also said that he had lived with defendants for a week or two prior to the beating, and during that time David Wurster had not appeared to be in pain.

Defendants, testifying on their own behalf, denied that David Wurster had been beaten by Evans. David testified that on June 30, 1976, while working for Caterpillar, he fell while dismounting a tractor inside a paint booth and hurt his back. Larry Putney, who was working nearby, testified that he did not see David fall, but that he heard a noise, turned around, and saw David on the floor. According to David Wurster, as a result of the fall, he stayed in bed until he went to see Caterpillar's doctor on July 6, 1976.

The jury found both defendants guilty as charged, and after sentencing, defendants perfected this appeal. Although numerous issues are presented for our consideration, we affirm.


Defendants challenge the sufficiency of the indictment on several grounds. The indictment charged:

"That on or about July 6, 1976 * * * DAVID M. WURSTER and LINDA S. WURSTER committed the offense of THEFT in that said Defendant(s) knowingly obtained, by deception, control over property of Caterpillar Tractor Company * * *, being money, specifically disability benefits, having a total value in excess of [$150], intending to deprive the owner permanently of the use and benefit of the property, in that he [sic], while employed by Caterpillar Tractor Company, represented to Caterpillar Tractor Company that he had been injured while working * * * on June 30, 1976, knowing that to be false * * *."

When the sufficiency of an indictment is challenged at trial, the standard on review is whether it sets forth the nature and elements of the offense charged in accordance with section 111-3(a)(3) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 111-3(a)(3)). (People v. Lutz (1978), 73 Ill.2d 204, 383 N.E.2d 171.) The nature and elements of the offense must be stated with enough specificity so that a judgment on the charge would act as a bar to further prosecution for the same offense, and so that the defendant is able to prepare a defense. People v. Banks (1979), 75 Ill.2d 383, 388 N.E.2d 1244; People v. Miller (1979), 75 Ill. App.3d 775, 394 N.E.2d 783.

• 1 Both defendants claim that, because the indictment did not allege that the money was obtained by a claim under the Workmen's Compensation Act, it failed to charge the offense with enough specificity to enable them to prepare a defense. We disagree. The indictment charged the theft of money in the form of disability benefits, and it described the false representation allegedly made by David Wurster to obtain the money. The language used sufficiently apprised defendants of the transaction which was the basis of the crime charged to enable them to prepare a defense. Citing Simmons v. People (1900), 187 Ill. 327, 58 N.E. 384, defendants also claim that the indictment was insufficient because it did not allege that Caterpillar relied on the false representation of David Wurster in paying the money. The Simmons case involved a prosecution for obtaining the signature to a deed by false pretenses. The supreme court reversed the defendant's conviction, stating: "The connection between the pretenses and obtaining the signature must appear either by a natural connection between them or by facts properly averred, so that the facts will lead to a necessary legal conclusion of the guilt of the defendant." 187 Ill. 327, 331.

• 2 Simmons does not compel a reversal in the instant case. Reliance upon the false representation of the accused is not a separate element of the crime of theft by deception that must be specifically alleged, particularly where, as here, the connection is apparent between the misrepresentation by defendants and their acquisition of the disability benefits.

• 3 Defendants also claim that the indictment was insufficient because there was no indication that the money was not paid voluntarily by Caterpillar, and also because the fraudulent prosecution of a claim under the Workmen's Compensation Act does not constitute theft as defined in section 16-1(b)(1). Both contentions are without merit. The language of the indictment clearly indicates that Caterpillar did not make a voluntary payment of the disability benefits, and a fraudulent Workmen's Compensation claim is just as much a theft by deception as any other scheme to obtain money by false pretenses. We note that the term "deception" is defined as to knowingly create or confirm an impression which is false and which the offender does not believe to be true. (Ill. Rev. Stat. 1977, ch. 38, par. 15-4.) A false workmen's compensation claim comes within that definition.

Finally, Linda Wurster contends that the indictment is insufficient because the factual allegations concerning the false representation refer to David Wurster only. She concedes that an accessory to a crime may properly be charged as a principal (People v. Heuton (1971), 2 Ill. App.3d 427, 276 N.E.2d 8), but cites People v. Trumbley (1911), 252 Ill. 29, 96 N.E. 573, in support of the proposition that the charge against the accessory "must be as full, complete and specific as a charge against one who commits the criminal act." 252 Ill. 29, 34-35.) She then argues that, without the factual allegations which refer only to David Wurster, the indictment was insufficient to charge her as a principal.

• 4 The Trumbley case does not support defendant's argument. In the first place, the indictment in that case charged both Jerry Trumbley and Grace Trumbley with rape but omitted a necessary allegation that Grace was a male, 17 years or older, as required by statute. Thus Trumbley is distinguishable on its facts from the case at bar. Secondly, under section 5-2 of the Illinois Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 5-2), an accessory may be charged and tried as a principal. ...

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