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People v. Stout

OPINION FILED JULY 28, 1982.

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

v.

HERBERT A. STOUT, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of McHenry County; the Hon. Henry L. Cowlin, Judge, presiding.

JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:

Defendant was tried by a jury in McHenry County for burglary of the village of Lakemoor municipal building, theft of merchandise taken in that burglary, and forgery of two checks taken in the burglary. The jury found him guilty of the two counts of forgery, counts VIII and IX in the information, and not guilty of the other charges. He appeals his conviction for the two forgeries.

We address first defendant's contention that he suffered double jeopardy when the trial directed the verdict in his favor on count IX and then reversed its decision, allowing trial on this count to continue and result in a guilty verdict.

After the State rested its case defendant moved for a directed verdict on all the charges. With respect to the forgeries defendant argues that the State failed to prove they were committed in McHenry County.

After hearing arguments from counsel for the defendant and the State the court stated that it would not direct the verdict on the burglary or theft counts nor on count VIII, one of the forgery charges, but it stated that with respect to count IX, the other forgery charge, the evidence showed the check was not completed in McHenry County but in Lake County. The court then stated the following:

"I am going to direct the verdict on Count Nine because the document was not completed in McHenry County.

* * * [T]he Court will direct — enter a directed verdict of not guilty as to Count Nine.

If you wish to submit something, fine. That's up to you."

The prosecutor then asked if he could submit a motion and the court consented. Later in the day the prosecutor moved for reconsideration. The court concluded that the objection to venue was waived and stated that therefore "the directed verdict is withdrawn." Defense counsel objected to the reconsideration on the basis that the court had already ruled. The court answered,

"Well, that's perfectly all right. However, * * * for the record the ruling has not been announced to the jury or anyone else at this time, so that would in no way affect the jury's consideration of this matter."

• 1 The granting of a motion to direct a verdict is an acquittal. (People v. Hutchinson (1975), 26 Ill. App.3d 368, 325 N.E.2d 115; People v. Gallas (1966), 77 Ill. App.2d 132, 221 N.E.2d 782.) The legal effect of a directed verdict is to bar, under double jeopardy principles, its vacation or reversal. (U.S. Const., amends. V and XIV; Ill. Const. 1970, art. I, sec. 10; Hutchinson; Gallas.) A trial court therefore may not withdraw an order directing a verdict and permit the jury to make a finding on the charge.

The State argues that the trial court here did not direct the verdict but only stated it would do so at a later time. The court indicated it would entertain further arguments on the matter and did not intend to rule until the State had presented its argument, the State contends.

The record shows, however, that the parties and the court all considered that an order directing the verdict was made.

In People v. Hutchinson and People v. Gallas, memorandum orders were entered. In the recent decision of In re L.R. (1982), 106 Ill. App.3d 244, 435 N.E.2d 908), which also held a directed verdict may not be rescinded, the reviewing court merely stated that the trial court directed the verdict, without stating whether it was recorded in a written order, or stated orally. The State ...


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