Appeal from the Circuit Court of Cook County; the Hon. Roger
J. Kiley, Judge, presiding.
JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
Arsham Zakarian, Wahi Karabit and Salem Saba were charged by indictment with two counts of felony theft and four counts of unlawful use of recorded sounds. One count of theft and two counts of unlawful use of recorded sounds pertained to cassette tapes and recordings allegedly owned by Thomas Wiggins. The remaining counts pertained to similar property allegedly owned by Stanley Rashid. After a bench trial, defendants were found guilty of felony theft of property owned by Wiggins and of two counts of unlawful use of unidentified sound recordings. The trial court held that the latter offenses merged into the theft conviction. Zakarian was sentenced to 30 months' probation and one year periodic imprisonment and fined $5,000. He was also ordered to make restitution in the amount of $10,000. Karabit was sentenced to 30 months' probation and fined $1,000. Saba was sentenced to two years' probation.
In appeal No. 82-2111, Saba filed a notice of appeal, but has not filed a brief. Therefore, in the exercise of our discretion under Supreme Court Rule 343 (87 Ill.2d R. 343), we dismiss his appeal. First Capitol Mortgage Co. v. Talandis Construction Corp. (1976), 63 Ill.2d 128, 345 N.E.2d 493.
In appeal No. 82-1901, Zakarian and Karabit contend their conviction for felony theft should be reversed for the following reasons: (1) the State failed to prove that any property, as defined in the Criminal Code of 1961, was taken from Wiggins; (2) intent to permanently deprive Wiggins of the use and benefit of his property was not proved beyond a reasonable doubt; and (3) the evidence did not establish that the property exceeded $150 in value. Defendants also contend they were improperly convicted of unlawful use of unidentified sound recordings because they were not indicted for that offense and were not proved guilty beyond a reasonable doubt. Additionally, they contend the trial court erred in merging the offenses.
We affirm in part, reverse in part, and remand.
The following evidence was adduced at trial. Stanley Rashid testified that the company for which he worked, Rashid Sales, represented the recording company EMI Greece and distributed Arabic and Greek recordings in the United States. On December 1, 1981, Rashid, Thomas Wiggins, two Chicago police officers and an attorney from the Records Industry Association of America drove to Zakarian's tape and record store. Rashid entered the store alone. He asked Karabit for a copy of the recording, "You Are My Love," sung by the Arabic artist Omkalsoum. The recording is one in a repertoire of songs copyrighted in the United States and imported and distributed here by Rashid Sales. Rashid also requested a tape of an Assyrian song sung by Walter Aziz and two other Assyrian songs from the album "Yala Ruppy and Assyrian National." Thomas Wiggins produced the latter recordings. Karabit copied the requested songs onto cassette tapes and from other tapes in the store and charged Rashid $11. Rashid left the store and gave the tapes to the two police officers. Rashid also identified photographs of the store and pointed out a high-speed duplicating machine used to record the tapes he had purchased.
Thomas Wiggins testified he was engaged in the manufacturing and wholesale distribution of musical recordings. He identified a recording agreement and master purchase agreements signed by Walter Aziz, Jermain Tamraz and Evin Aghassi. Through these agreements, Wiggins obtained exclusive rights to manufacture, sell, distribute, license or otherwise dispose of music produced under contracts with the artists. Wiggins produced recordings by these artists and had the exclusive right to manufacture products derived from the master recording.
On December 1, 1981, he listened to tapes which Rashid had given to police and recognized songs sung by Tamraz and Aziz. He had not given defendants permission to sell recordings by these artists. In the three-week period after December 1, Wiggins' sales increased from $600 to $7,000. Defendants stipulated that Wiggins was president of the recording company and that he owned rights to distribute and sell the recordings in question.
Detective Frank Nelligan testified he seized racks of cassette tape recordings from Zakarian's store. He believed he seized 69 racks containing about 1,000 tapes. While at the store he saw equipment for reproducing tapes, a Xerox machine, copies of labels, and a machine for encasing tapes in plastic. Nelligan thought all the tapes he seized were numbered and labelled.
Defendants Wahi Karabit and Arsham Zakarian testified through an interpreter. Karabit testified that he sold tapes to Rashid on December 1, 1981. He was not employed by his brother Zakarian, but was working at the store that day because his brother was ill. Karabit further testified he did not know who owned the rights to the songs he recorded for Rashid and did not understand copyright principles. On cross-examination, Karabit identified a photo of the cassette recorder used to copy tapes, but could not answer questions concerning the operation of the machine.
Arsham Zakarian testified he received some tapes from his brother in Iraq and others from a store in Detroit. Many of the tapes recorded for sale in his store were reproduced from these. However, most of the tapes sold in his store were ready-made tapes purchased from Detroit and were sold without being duplicated. Twenty-eight companies in Detroit operated businesses similar to his. Zakarian further testified that he never purchased merchandise from EMI or Ninevah Record Company and none of the tapes seized in his store were manufactured by either company. Zakarian was not aware of recording rights to the songs on the tapes sold by his brother.
On cross-examination, Zakarian testified that he copied about 100 tapes each month. He used the Xerox machine to copy flyers and attached the flyers to the tapes. Total monthly sales of copied tapes amounted to $300 to $400. Most of the tapes seized belonged to him and were never duplicated for sale.
Defendants first contend they were not proved guilty of theft beyond a reasonable doubt where the State failed to prove that any property was taken from Wiggins. Indeed, there is no evidence that cassette tapes were taken from Wiggins' possession by defendants. Our review of the record reveals that theft of tapes was not and could not have been the ground for defendants' convictions. Rather, the basis for the convictions was the invasion of Wiggins' exclusive recording rights. The State argues that by invading Wiggins' recording rights, defendants deprived Wiggins of his royalties. The State maintains that the right to royalties is a thing of value and this is property which may be the subject of theft.
• 1, 2 At common law, only tangible personal property could be the subject of larceny. Written documents such as deeds and contracts and things growing on, affixed to, or found on land partaking of the nature of realty were not considered property for the purpose of larceny. (W. LaFave & A. Scott, Criminal Law sec. 87, at 633 (1972).) Electrical energy and water power were also excluded subjects of larceny under common law. (People v. Menagas (1937), 367 Ill. 330, 11 N.E.2d 403.) By legislative enactment, things not embraced by larceny under common law are considered property for the purpose of our theft statute. Section 15-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 15-1) provides:
"As used in this Part C, `property' means anything of value. Property includes real estate, money, commercial instruments, admission or transportation tickets, written instruments representing or embodying rights concerning anything of value, labor, or services, or otherwise of value to the owner; things growing on, affixed to, or found on land, or part of or affixed to any building; electricity, gas and water; birds, animals and fish, which ordinarily are kept in a state of confinement; food and drink; samples, cultures, microorganisms, specimens, records, recordings, documents, blueprints, drawings, maps, and whole or partial copies, descriptions, photographs, computer programs or data, prototypes or models thereof, or any other articles, materials, devices, substances and whole or partial copies, descriptions, photographs, prototypes, or ...