Appeal from the Circuit Court of Cook County; the Hon. Earl
Strayhorn, Judge, presiding.
JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Defendants, Joseph L. Locascio and Stanley Kubas, were tried jointly in a bench trial in the circuit court of Cook County, convicted of official misconduct, and sentenced to 12 months' probation. The appellate court reversed the convictions, finding that defendants had not been proved guilty beyond a reasonable doubt. (Order under Supreme Court Rule 23 (87 Ill.2d R. 23).) The Illinois Supreme Court granted the State's petition for leave to appeal (94 Ill.2d R. 315(a)) and, in a decision issued on May 24, 1985 (People v. Locascio (1985), 106 Ill.2d 529, 478 N.E.2d 1358), reversed the judgment of the appellate court and remanded, directing the appellate court to decide those remaining issues that were raised by defendants but were not addressed by the reviewing court.
The instant case, now before this appellate court on remand, presents the following issues: (1) whether the State failed to offer any proof of several elements of the charged offenses, (2) whether the indictment was unconstitutionally vague and ambiguous as to the specific conduct charged, (3) whether the indictment omitted essential elements of the charged offenses, and (4) whether the trial court erred by imposing a single sentence for multiple convictions.
We affirm the decision of the trial court and uphold defendants' convictions.
The facts of the instant case are set forth in the supreme court decision (People v. Locascio (1985), 106 Ill.2d 529, 478 N.E.2d 1358), and will only be reiterated in the instant opinion as necessary to support the dispositive legal reasoning.
• 1 Defendants first contend on appeal that the State failed to offer any proof of several essential elements of the charged offenses. The statutory elements of the offenses with which defendants are charged, namely, official misconduct and poaching violations, require proof of the following that: (1) defendants were acting in their official capacity at the time the offense was committed (Ill. Rev. Stat. 1981, ch. 38, par. 33-3(b)), (2) defendants knew that shooting deer in the forest preserve was unauthorized conduct (Ill. Rev. Stat. 1981, ch. 38, par. 33-3(b)), (3) defendants took deer outside the open season (Ill. Rev. Stat. 1981, ch. 61, par. 2.25) and (4) that defendants took deer after sunset and before sunrise (Ill. Rev. Stat. 1981, ch. 61, par. 2.26).
The defendants do not dispute that deer hunting occurred in Dam 1 Woods area at approximately 10 p.m. on January 27, 1982, and that they were the only persons present at that time. Neither do defendants dispute that they were acting in their official capacity at the time they were in the woods. Defendants, in their official capacity, were Cook County Forest Preserve officers whose duty it was to enforce the rules made to protect the forest preserve and the animals therein. As such, defendants must necessarily have known it was unauthorized conduct to shoot deer in the forest preserve or to take deer outside open season. Moreover, the Illinois Supreme Court found that defendants were proved guilty beyond a reasonable doubt of killing and taking deer after sunset and before sunrise. People v. Locascio (1985), 106 Ill.2d 529, 478 N.E.2d 1358.
Based on the evidence presented by the record, including the testimony adduced at trial, as summarized by the supreme court in its decision, we must conclude that the evidence was sufficient to prove the statutory elements that comprise the crimes charged.
• 2 Defendants next argue that the indictment by which they were charged was unconstitutionally vague because each count included the word "taking" which is statutorily defined in the disjunctive:
"`Take' means hunt, shoot, pursue, lure, kill, destroy, capture, gig or spear, trap or ensnare, harass, or to attempt to do so." (Ill. Rev. Stat. 1981, ch. 61, par. 1.2o.)
Defendants rely on People v. Oulson (1976), 37 Ill. App.3d 912, 347 N.E.2d 71, in which the court found that the charge of "Taking White Tail Deer with Rifle," in violation of section 2.26 of the Game Code of 1971 (Ill. Rev. Stat. 1973, ch. 61, par. 2.26), was insufficient to charge the offense because the statutory definition of "taking" alleges "clearly alternative and disparate acts." The Oulson court, in turn, relied upon People v. Heard (1970), 47 Ill.2d 501, 266 N.E.2d 340, and found itself controlled by the "Heard rule." People v. Oulson (1976), 37 Ill. App.3d 912, 915, 347 N.E.2d 71, 73.
Heard dealt with a complaint charging defendant with gambling in violation of section 28-1(a)(8) of the Criminal Code of 1961 (Ill. Rev. Stat. 1967, ch. 38, ...