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People v. Baugh

OPINION FILED MAY 28, 1981.

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

v.

BOBBIE BAUGH, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. DANIEL J. WHITE, Judge, presiding.

MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Defendant, Bobbie Baugh, was convicted by a jury in the circuit court of Cook County of 12 counts of theft (Ill. Rev. Stat. 1979, ch. 38, par. 16-1). She was sentenced to 30 months probation.

On appeal, defendant contends: (1) she was denied a fair trial because a burden of proof instruction submitted to the jury failed to allege that the State had the burden to prove that defendant intended to permanently deprive the owner of the use or benefit of the property; (2) she was denied her right of confrontation by the trial court's restrictions placed upon cross-examination of three of the State's witnesses.

We affirm.

Facts

From February 1976 to January 1977, defendant lived with her two children in an apartment located at 539 West 44th Place on the south side of Chicago. From February 1977 to June 1977, defendant lived with her two children in an apartment located at 4700 South Halsted. During both these periods of time, defendant was receiving benefits under the Aid for Dependent Children program (AFDC). She received approximately $260 a month as a monthly entitlement, approximately $1600 in medical entitlements, and approximately $750 in food stamps.

On numerous occasions throughout the 1 1/2-year period, defendant represented to agents of the Illinois Department of Public Aid that she was not receiving any outside support from any other person. She also represented to those agents that her husband had abandoned her; that her husband was, to the best of her knowledge, living somewhere in Alabama, and that her husband was not providing her with any support. However, an abundance of evidence presented at trial showed that, during the entire period of time, defendant's husband was living with her, was gainfully employed, and was providing support for defendant and her children. Under the rules for AFDC, these facts made defendant ineligible for any benefits. The evidence showed that defendant knew she would be ineligible for AFDC payments if her husband lived with and supported her and the children.

Defendant was charged by indictment with 39 counts of theft. She was convicted of only 12 counts. The counts for which she was convicted were the following: (1) theft of approximately $750 in food stamps during the entire 1 1/2-year period based on obtaining and exerting unauthorized control over the property (Ill. Rev. Stat. 1979, ch. 38, par. 16-1(a)); (2) theft of the same food stamps based on obtaining by deception control over the property (Ill. Rev. Stat. 1979, ch. 38, par. 16-1(b)); (3) five counts of theft, each for theft of approximately $260 in a monthly entitlement for the five-month period from February 1977 to June 1977, based on obtaining and exerting unauthorized control of the five monthly entitlements; (4) five counts of theft for the same monthly entitlements based on obtaining by deception control over the five monthly entitlements.

Defendant was acquitted of the counts relating to the medical payments and the counts for theft of the monthly entitlements specifically relating to the time she was living at 539 West 44th Place from February 1976 to January 1977.

OPINION

I

Improper Instructions

Defendant initially contends that she was denied a fair trial because of the giving to the jury of an improper burden of proof instruction. Four related instructions on theft were given by the court. The first three of these were proper Illinois Pattern Jury Instructions and the fourth was not.

The first instruction defined theft by obtaining or exerting unauthorized control over property of another and included the language that the accused must intend to permanently deprive the owner of the use or benefit of the property. (See Ill. Rev. Stat. 1979, ch. 38, par. 16-1(d)(1).) The second instruction stated the elements of theft that the State had to prove to convict for theft by obtaining or exerting unauthorized control over property and included ...


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