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People v. Alexander

OPINION FILED NOVEMBER 18, 1982.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

JEFFREY ALEXANDER, APPELLANT.



Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Will County, the Hon. Angelo F. Pistilli, Judge, presiding.

JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:

The defendant, Jeffrey Alexander, was charged by information in the circuit court of Will County with theft, in that "on or about October 31, 1979, at and within Will County * * * he, knowingly exerted unauthorized control over a 1973 Buick Electra, valued at more than $150, * * * intending to deprive Leola H. Perkins permanently of the use and benefit of said property." (Ill. Rev. Stat. 1977, ch. 38, par. 16-1(a)(1).) Following a bench trial, the defendant was found guilty and was sentenced to serve a three-year term of imprisonment. On appeal by the defendant, the majority of the appellate court affirmed the defendant's conviction. (99 Ill. App.3d 810.) The defendant filed a petition for leave to appeal, which was granted. 73 Ill.2d R. 315(a).

On appeal before this court, the defendant asserts that the majority of the appellate court erred in affirming his conviction because the evidence which was adduced at trial was not sufficient to sustain a conviction as charged in the information. The defendant contends that the information charged him with the theft of a vehicle in Will County on October 31, 1979, and that the evidence showed that the theft occurred in Cook County, but that he exerted control over the automobile in Will County 11 days later.

At trial, the State's first witness was Leola H. Perkins, the owner of the 1973 Buick Electra. Ms. Perkins testified that she was in her home in Cook County on October 31, 1979. On that date, Ms. Perkins testified, a man with a gun confronted her on the second floor of her home. The man told Ms. Perkins that he was not going to rape her, but demanded that she give him her money and jewelry.

Ms. Perkins testified that after she gave the man all the money and jewelry that she had in the house, he forced her to drive her car to her bank. The bank was located in Cook County, approximately two miles from Ms. Perkins' home.

After they parked the automobile outside the bank, the defendant told Ms. Perkins to leave her keys in the car and to go inside the bank to withdraw her money. Once inside the bank, Ms. Perkins asked the bank employees to call the police. While Ms. Perkins was speaking to the police on the telephone, she testified, she saw the defendant drive away in her car.

On November 11, 1979, shortly after midnight, the defendant was observed sitting inside Ms. Perkins' automobile as it was parked and idling in the 500 block of Haweswood Drive in Crete. Crete is located in Will County. After the police officers established that the automobile was stolen, the defendant was placed under arrest for being in possession of a stolen automobile.

At trial, the State presented testimony which established that the 1973 Buick Electra had a value of more than $150 at the time of the theft. The State also presented testimony which established that the defendant's fingerprints were found in Ms. Perkins' home. After presenting its evidence, the State rested. The defense rested without presenting any evidence. The court found the defendant guilty of theft as charged in the information, finding specifically that the defendant committed the offense, "in the manner and form as set forth in the information, on November 11, 1979, which is on or about October 31, 1979."

On appeal, the appellate court affirmed the defendant's conviction. The court held that the defendant's argument that his conviction should be reversed because the State failed to prove that the offense occurred in Will County on October 31, 1979, was without merit. The court reasoned that because the information alleged that the defendant "exerted" (not "obtained") unauthorized control in Will County "on or about" October 31, 1979, the proof at trial of exertion of unauthorized control by the defendant in Will County on November 11, 1979, was not fatal to the information.

The date alleged in a charging instrument need not ordinarily be proved precisely. If there is an error in the indictment, and upon trial the proof establishes that the offense was committed on a date other than the precise date alleged, that irregularity will not constitute a fatal variance. People v. Hubbard (1970), 46 Ill.2d 563.

In the instant case, a particular time was not an essential element of the crime and the expiration of the statute of limitations was not at issue. Thus, proof that the defendant exerted unauthorized control over the automobile on November 11, 1979, when the information was phrased, "on or about October 31, 1979," did not constitute a fatal variance.

A defendant can be found guilty of theft solely on the basis of knowingly exerting unauthorized control over the property of another at the time of arrest, because the crime of theft is not limited to the original taking of the property. (People v. Nunn (1965), 63 Ill. App.2d 465, 470-71.) Section 16-1(a)(1) of the ...


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