APPEAL from the Circuit Court of Cook County; the Hon. MARK E.
JONES, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
After a bench trial, defendant was convicted of theft by deception and received a sentence of 2 to 6 years. On appeal, he contends that (1) he was not proved guilty beyond a reasonable doubt; (2) there was a fatal variance between the offense charged and the proof at trial; and (3) the trial court improperly denied him a preliminary hearing.
The testimony at trial disclosed that a man identifying himself as Mike Spracht informed Andrew F. Maletich, Jr., that he had television sets for sale, and a few days later he telephoned Andrew F. Maletich, Sr., and explained that he worked for a furniture store and, due to financial problems, his boss was selling his stock of television sets. Spracht told Maletich, Sr., that he could purchase 15 to 20 sets for $4,700 if he paid cash and picked them up in his own truck. Maletich, Sr., who was president of Rite-Way Tile and Carpet Company (Rite-Way), and his son, who was vice president, thought those terms fair and agreed to the purchase — intending to use the sets to promote carpet sales.
Then, on July 26, 1977, Maletich, Sr., received another telephone call at his office from Mike Spracht, who told Maletich, Sr., to meet him in the Rite-Way company truck at 22d and Central Avenue in Cicero. Immediately thereafter, Maletich, Sr., cashed a check for $4,700, counted the cash in front of his son, and put the money into a white envelope which he gave to his son and instructed him to take the company truck to meet Spracht, who would direct him to a warehouse where he was to give Spracht the money in exchange for the television sets.
That same day, Maletich, Jr., drove the truck to the prearranged location and was met by defendant, who directed him to drive around the block to a warehouse where they sat in the vehicle for about five minutes while defendant showed him a brochure from which he was to choose the sets he wanted. Defendant then said that he was going to see if his boss, who lived around the corner, was at home and that Maletich, Jr., should give him the money and wait for him. Maletich, Jr., handed defendant the envelope containing the money and, after they conversed for another five minutes, defendant left holding the money in his hands. Maletich, Jr., waited for awhile and then looked for but could not find defendant.
The next day, Mike Spracht called Maletich, Sr., and, after apologizing for his abrupt disappearance the day before, said he would return the money. He again promised to do so in a telephone conversation a few days later.
Defendant first contends that he was not proved guilty of theft by deception beyond a reasonable doubt. In support thereof, he argues that no evidence was adduced to show the money had been withdrawn from the corporate account or the victim's personal account; that the cancelled check was not offered in evidence; that the existence of the corporation was not established; and that there was no evidence to show that he was the person who received the money or to negate the fact that Andrew Maletich, Jr., may have absconded with the money.
• 1 The crime of theft by deception is defined in section 16-1(b) of the Criminal Code of 1961, which provides:
"A person commits theft when he knowingly:
(b) Obtains by deception control over property of the owner; * * *." (Ill. Rev. Stat. 1977, ch. 38, par. 16-1(b).)
The elements essential to sustain a charge of theft by deception are that a named person owned or possessed specified property; that the accused knowingly obtained by deception control over that property; and that the accused acted with the intent to permanently deprive the named person of the use and benefit of that property. See People v. Decker (1974), 19 Ill. App.3d 86, 311 N.E.2d 228.
• 2 The record in the case at bar discloses that following telephone conversations with a man identifying himself as Mike Spracht, who offered 15 to 20 television sets for about $4,700, Maletich, Sr., cashed a check for that amount and gave it to his son, with instructions to pick up the sets in the company truck in exchange for the money; that Maletich, Jr., drove the truck to a certain location where he met defendant, who directed him to drive for about 10 minutes, and when they stopped defendant showed Maletich, Jr., a brochure from which he was to select the sets he wanted; that defendant then asked for the money and told him to wait in the truck while he (defendant) went to see if his boss was home; that Maletich, Jr., gave defendant the envelope containing the money and, after they conversed for another five minutes in the truck, defendant left holding the money in his hands; and that Maletich, Jr., waited another 5 to 10 minutes and then tried but could not find defendant.
In our view, the evidence established that Maletich, Jr., was the named person who had possession of the property when it was stolen; that defendant knowingly obtained by deception control over it by falsely representing himself to be an employee of a company that was liquidating its stock of television sets at a discount; and that when he left with the money and did not return, defendant intended to permanently deprive Maletich, Jr., of the use and benefit thereof. On the basis of this ...