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People v. Pizzi





APPEAL from the Circuit Court of Cook County; the Hon. MARK E. JONES, Judge, presiding.


Defendants were charged with conspiring to steal carpeting from Crest Flooring Distributors through a scheme in which Pizzi allegedly manipulated and destroyed Crest's business records so that Johnson could receive merchandise without being billed. (Ill. Rev. Stat. 1977, ch. 38, par. 8-2.) In addition, Pizzi was charged with theft (Ill. Rev. Stat. 1977, ch. 38, par. 16-1(a)(1)) and Johnson was charged with theft by deception (Ill. Rev. Stat. 1977, ch. 38, par. 16-1(b)(1)). After a bench trial, defendants were respectively convicted of theft and theft by deception and each was sentenced to one year probation.

On appeal defendants contend that (1) the State's evidence was not sufficient to prove guilt beyond a reasonable doubt; (2) the trial court committed reversible error by restricting cross-examination of crucial prosecution witnesses; (3) the trial court's finding was based on either misapprehension of the evidence or on information that was not presented at trial; and (4) it was error to convict them of the inchoate offense — conspiracy — in addition to the principal offense: theft.

• 1 The fourth issue is easily resolved. Written sentencing orders, signed by the trial judge, state that each defendant was placed on probation "on a charge of Theft Etc." Use of the phrase "etc.," which literally means "and other things," raises the question of whether judgment was also entered on the conspiracy charge. While it is proper to simultaneously prosecute a defendant for both an inchoate offense and the corresponding principal offense, judgment can only be entered for one of the two crimes. (Ill. Ann. Stat., ch. 38, par. 8-5, Committee Comments, at 579 (Smith-Hurd 1972); People v. Brouilette (1968), 92 Ill. App.2d 168, 236 N.E.2d 12.) In this case, the phrase, "Theft Etc." was merely used as shorthand for the particular type of theft offense with which each defendant was charged. The preprinted sentencing orders contain spaces for inserting the numerical designations of the offenses upon which judgment was entered. By number, Pizzi and Johnson are only listed as having been convicted, respectively, of theft by unauthorized control and theft by deception. In this context, it is obvious that the phrase "Theft Etc." is merely an abbreviation for the type of theft offense which is specified with more particularity by number. We therefore conclude that judgment was entered only on the theft charges.

The pertinent facts follow.

The essence of the alleged scheme was that, in March and April 1978, Pizzi, an employee of Crest Flooring Distributors, approved credit, with out authorization, for carpeting orders from Bell Plaine Carpeting. Then, "a representative of Bell Plaine Carpeting, owned by Herbert J. Johnson, picked up carpeting [under these orders] knowing that his company had no authorization for credit from Crest * * *." According to the State's theory, Johnson never paid for this property, and as a part of the scheme, Pizzi destroyed or altered records of the transactions.

At the time these crimes allegedly occurred the procedure at Crest was that when a customer ordered merchandise, Pizzi (or one of the two other order department employees) filled out a five-copy order form. A copy of this order was sent to the warehouse so that the merchandise could be prepared for pickup. All credit transactions had to be approved by Allen Kramer, the branch manager, or by the credit manager. If credit was approved, and marked as approved on the work order, the customer could go straight to the warehouse to get the ordered merchandise.

The company kept records of customers who ordered merchandise and of the order numbers for these transactions.

Marshall Gordon, president and sole owner of Crest, regularly saw Johnson picking up merchandise at Crest's warehouse, but Gordon did not see any paid invoices from these sales. As a result, Gordon instructed a warehouse employee to keep a list of Johnson's orders.

Nick Bemont, a Crest warehouse employee, kept the list of orders from Johnson's company. From March 14 to April 19, 1978, Bemont listed 16 orders. Although these were all credit transactions, Bemont did not identify who was listed as having approved credit. Two thirds of the orders were picked up by Johnson. The others were picked up by one of Johnson's employees, though Bemont was unable to say which order was picked up by which individual.

Gordon checked the order numbers from the Bemont list, but he could not find any record that bills had been sent to Bell Plaine for these transactions. For some of these sales, the documents were missing. With others, the records, in Pizzi's handwriting, contained an irregular billing number: the number listed was a repeat of the billing number for a prior sale. Also in evidence was an order form, in Pizzi's handwriting, which stated that carpeting was ordered by Bell Plaine on April 19, 1978, and which had her initials in the space reserved for credit approval. However, the merchandise listed in this order was never picked up.

According to Pizzi, Allen Kramer instructed her to make incorrect entries in the records on occasions when he took the proceeds from cash sales. Beginning in 1976, and on the average of once a month Kramer took money from the cash box. This money supposedly was for Gordon, but Pizzi believed that Kramer was not forwarding the money. She was suspicious because Kramer also took the order forms for these cash sales, and he ordered her to list these sales, in the records, with incorrect billing numbers. The amount Kramer took in March and April 1978 was $5,000. This amount included the proceeds from sales to Johnson. In addition, Kramer told her that Johnson could have short-term credit. Kramer told her several times that sales to Johnson had to be cash on delivery, but that, if Johnson did not have enough cash when he came to pick up the merchandise, he could pay for it within a day or two.

Kramer admitted that he occasionally picked up cash from the order department, along with the corresponding records, but he gave the money and records to Gordon or the company bookkeeper. He estimated the amount as being more than $1,000, though less than $10,000. Kramer also admitted that he occasionally extended short-term credit to Johnson, but only for the sale of remnants (that is, leftovers near the end of a roll of carpeting). The goods described on the Bemont list were remnants. He denied ever telling Pizzi that Johnson was authorized to have short-term credit.

Gordon admitted that Kramer gave him proceeds from cash sales, but he said he instructed the bookkeeper to list these as personal loans. He could not recall how much cash he received in ...

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