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People v. Mcbride

OPINION FILED JANUARY 21, 1981.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

DIXIE L. MCBRIDE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Madison County; the Hon. VICTOR J. MOSELE, Judge, presiding.

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:

On October 12, 1979, the defendant was charged by information in the Circuit Court of Madison County with the offense of theft over $150. She entered a plea of not guilty, demanded a trial by jury, was tried, convicted and sentenced to probation for a period of one year.

In the summer of 1979, the defendant was a public aid recipient. On or about July 16, 1979, she contacted the office of the Department of Public Aid in Alton, Illinois, informing a Mr. Stout, an employee thereof, that her check for July of 1979 had not been received. On July 18, 1979, she went to the office and had a conversation with Mr. Stout. She filled out and signed a form entitled "Stop Payment Request and Recovery Agreement." One of the conditions of the "stop payment" request was that the defendant agreed "To immediately notify the Department of Public Aid should such original warrant at any time hereafter come into my possession or control. I will return it immediately and I agree not to endorse and not to cash said warrant." According to Mr. Stout, she was told that it would be a week to 10 days before the replacement warrant would arrive. On July 20, 1979, she received a warrant, and cashed it on or about that date. Another warrant was received and cashed on or about July 30, 1979. On August 18, 1979, she received and cashed another public aid warrant. All warrants were payable to defendant.

The defendant was interviewed by Deborah Morgan, an employee of the Department, concerning the reported non-receipt of the original warrant. Morgan testified that the defendant told her she "knew I was not supposed to get two checks each month but I needed the money."

The defendant testified that she cashed both warrants in July but was of the opinion that the second warrant was her August public aid check. She further testified the day after she cashed the second warrant, she went to her mother's home to pay her mother for a phone bill. When her mother asked her where she got the money, she told her it was from her August check. She testified that on the same day she saw a Joan Austin, but objections to conversations with Miss Austin were sustained by the court. However, she testified she told a Ms. Morgan she thought the first check she received was the replacement check and the second check was her August check. On cross-examination the People were allowed to introduce, over defendant's objection, a warrant dated August 15, 1979, for the sum of $214 endorsed by Dixie L. McBride on or about August 18, 1979.

The defendant made an offer of proof that if Dorothy McBride were called as a witness, she would testify that Dixie McBride told her she got the money to pay Dorothy McBride for two long distance phone calls from her August check; further, that if Joan Austin were called as a witness, she would testify that she heard Dixie McBride tell Joan Harris she had gotten the money for Tony McBride's clothes from her August check and that these conversations all took place on the same day. The offer was denied by the court.

The defense attorney's theory was that the statements were offered to rebut the charge of recent fabrication.

The defendant raises four issues on appeal:

a. She was not proven guilty of deceit beyond a reasonable doubt.

b. Exclusion of defendant's prior consistent statements denied her a fair trial.

c. Defendant's statements to Dorothy McBride and Joan Austin should have been admitted as declarations reflecting defendant's state of mind.

d. The defendant was unfairly prejudiced by the admission of irrelevant evidence that had not been previously disclosed to the defendant.

The defendant is charged under section 16-1(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, ...


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