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People v. Joseph

OPINION FILED MARCH 30, 1981.

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

v.

DAVID L. JOSEPH ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. PAUL F. GERRITY, Judge, presiding.

MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

David L. Joseph and Dixmoor Motors, Inc. (defendants) were charged with violation of section 3-113(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1977, ch. 95 1/2, par. 3-113(a)) requiring a dealer to transfer title upon the sale of a vehicle. After a bench trial defendants were found guilty and each was fined $500. Defendants appeal.

On May 2, 1977, David Joseph, president of Dixmoor Motors, Inc., called the general manager of Liberty Buick Company, Inc., and ordered an automobile for resale by Dixmoor to one of its customers. On July 6, 1977, Joseph told the general manager of Liberty Buick on the telephone he would mail him a check for $5447.64, the purchase price of the car. Dixmoor received delivery of the automobile the following day.

On July 9, 1977, the car was sold by Dixmoor to Ilene Zeiger. She testified Joseph handled the transaction. She did not receive a certificate of title even though she tried to obtain one from Joseph on several occasions. Joseph sent her two "license applied for" stickers. In addition, since she could not obtain license plates without the title to the car, defendant Joseph sent her a set of dealer's license plates for her use. She used these plates on a temporary basis.

On October 17, 1977, Liberty Buick received Dixmoor's check for the price of the car. The drawee bank returned the check unpaid and marked "refer to maker." Liberty Buick then refused to tender the manufacturer's statement of origin to defendants. The statement of origin, dated June 29, 1977, reflected a "first assignment" by Liberty Buick to Dixmoor on September 7, 1977. Payment for the car was never made to Liberty Buick. Over a year after she bought the car, Ilene Zeiger posted a bond for $150 and received a certificate of title from the Secretary of State. Dixmoor was discharged in bankruptcy on June 19, 1978.

Defendants contend the State failed to prove defendant Joseph violated section 3-113(a) because Joseph, as an officer of a corporation, cannot be a dealer. Defendants urge the Code requires all dealers to be licensed (Ill. Rev. Stat. 1977, ch. 95 1/2, par. 5-101(a)), but if the applicant is a corporation, its directors and officers must also be listed (Ill. Rev. Stat. 1977, ch. 95 1/2, par. 5-101(b)(2)). Defendants concede the statute is unambiguous and needs no interpretation, and they argue its penal nature requires the court to construe it strictly.

Section 3-113(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1977, ch. 95 1/2, par. 3-113(a)) provides:

"If a dealer buys a vehicle and holds it for resale and procures the certificate of title from the owner or the lienholder within ten (10) days after delivery to him of the vehicle, he need not send the certificate to the Secretary of State but, upon transferring the vehicle to another person * * *, shall promptly and within fifteen (15) days execute the assignment and warranty of title by a dealer, showing the names and addresses of the transferee and of any lienholder holding a security interest * * *, and mail or deliver the certificate to the Secretary of State with the transferee's application for a new certificate."

See People v. Palmeri (1976), 44 Ill. App.3d 69, 72, 358 N.E.2d 86, appeal denied (1977), 65 Ill.2d 579, cert. denied (1977), 431 U.S. 938, 53 L.Ed.2d 255, 97 S.Ct. 2650.

"Dealer" is defined by the Code as (Ill. Rev. Stat. 1977, ch. 95 1/2, par. 1-115):

"Every person engaged in the business of buying, selling or exchanging vehicles and who has an established place of business for such purpose in this state."

This court stated the applicable law in construing these statutes in Palmeri (44 Ill. App.3d 69, 71):

"Recognizing that criminal statutes are to be strictly construed in favor of the accused, we still must ascertain the legislative intent [citation] and in cases where the language is ...


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