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People v. Bohm





Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Whiteside County, the Hon. John B. Cunningham, Judge, presiding.


On February 11, 1981, John Bohm was charged by complaint in the circuit court of Whiteside County with theft (Ill. Rev. Stat. 1979, ch. 38, par. 16-1) and with driving after his license had been revoked (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 6-303). The theft complaint charged that he, on or about February 11, 1981, "knowingly: obtained or exerted unauthorized control over property, to wit: $20.00 of regular gasoline, 15.9 gallons, belonging to Town & Country Food Store, Inc., a corporation, and in so doing intended to deprive the owner of the use or benefit of the property, said property being then and there of a value of less than $150.00: in violation of Section 16-1, Chapter 38, Illinois Revised Statutes." Counsel was appointed for the defendant and he entered pleas of not guilty and waived his right to a jury trial. After a bench trial, the defendant was found guilty of both offenses and was sentenced to two concurrent terms of 363 days to be served in the Department of Corrections. The appellate court, in a Rule 23 order (73 Ill.2d R. 23), reversed the conviction for theft, vacated the trial court's sentencing order, and remanded the cause for resentencing on the driving on a revoked license conviction. (102 Ill. App.3d 1206.) We granted the People's petition for leave to appeal. 73 Ill.2d R. 315.

The trial proceedings were not transcribed, but two months after trial, the parties, under Supreme Court Rule 323(d) (84 Ill.2d R. 323(d)), submitted an agreed statement of facts which summarized the evidence presented. The statement of facts reads:

"There was a stipulation by the defendant that he drove a motor vehicle on the streets of Rock Falls, Whiteside County, Illinois, on February 11, 1981 and that on that date his privilege to drive in the State of Illinois had been revoked by the Secretary of State.

The first witness, Patricia Richerson, testified substantially as follows:

She was an employee at a self-service Shell service station in Rock Falls, Illinois on February 11, 1981. At about 1:00 a.m. on February 11, 1981 a person identified as John N. Bohm entered the station area and proceeded to put gasoline in his car. The monitor in the office of the service station showed that the defendant had put gasoline in his automobile of a value of $20.00. The defendant approached the office in his automobile and offered to pay $2.00. Ms. Richerson refused the money and the defendant drove away without paying anything.

On cross examination Ms. Richerson stated that the pump used by the defendant had a fixed final number of zero. As the defendant pumped gasoline only three numbers would have moved; the final zero remaining constant.

Lt. Mangan of the Rock Falls Police Department stated that he stopped Mr. Bohm near the service station and arrested him for theft. After further checking he discovered Mr. Bohm's driving privilege was revoked and arrested him for that as well.

In his own defense, Mr. Bohm testified he drove into the service station with less than $10.00 in his possession. He stated that he only wanted $2.00 worth of gasoline and that he was unaware of the fixed final number on the pump. After he had put what he thought was $2.00 worth of gasoline into the car, he drove to the office and offered the attendant $2.00. The attendant refused the $2.00 and Mr. Bohm drove out of the station. He was stopped by Lt. Mangan a short distance away."

The theft complaint alleged that the defendant had stolen gasoline belonging to Town & Country Food Store, Inc., in Whiteside County, Illinois. At trial the evidence was that the defendant had taken the gasoline from "a self-service Shell service station in Rock Falls, Illinois." On the ground that no relationship was shown to exist between the corporation and the service station, the appellate court reversed the theft conviction. The court considered that the variance between the charge and the evidence created a vagueness as to the identification of the owner of the gasoline that would not insure that the theft conviction would act as a bar in any subsequent prosecution for the same offense.

The People contend that in order to prove the commission of theft it need only be shown "that someone other than the accused possessed or held an interest in the property and that the accused was unauthorized in exerting control over that property." Since the evidence shows that the defendant, without authorization, took gasoline belonging to a self-service Shell service station, the People say that the elements of theft were proved.

The theft statute in part provides:

"A person commits theft when he knowingly:

(a) Obtains or exerts unauthorized control over ...

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