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05/13/87 the People of the State of v. Patrick R. Drake Iii

May 13, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

PATRICK R. DRAKE III, DEFENDANT-APPELLANT

SECTION 16-1(D)(1) OF THE CRIMINAL CODE (ILL. RE

v.

STAT. 1983, CH. 38, PAR. 16-1(D)(1)) FORMERLY PROVIDED IN PERTINENT PART AS FOLLOWS: "A PERSON COMMITS THEFT WHEN HE KNOWINGLY:



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

509 N.E.2d 505, 156 Ill. App. 3d 425, 108 Ill. Dec. 809 1987.IL.618

Appeal from the Circuit Court of Cook County; the Hon. Loretta C. Douglas, Judge, presiding.

APPELLATE Judges:

JUSTICE WHITE delivered the opinion of the court. McNAMARA, P.J., and FREEMAN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WHITE

Following a bench trial, defendant, Patrick R. Drake III, was convicted of theft (Ill. Rev. Stat. 1985, ch. 38, par. 16-1(d)(1)) and was sentenced to nine months' incarceration in the Cook County Department of Corrections. He was also required to make restitution to the property owner in the amount of $100. On appeal, he contends that the State's evidence was not sufficient to prove him guilty beyond a reasonable doubt because the State proceeded under the portion of the theft statute proscribing the possession of stolen property and failed to prove that the property in this case was stolen by someone other than defendant. He also contends that his right to remain silent was violated.

On May 3, 1985, at about 7 a.m., the complainant, Mark Herlin, discovered that the car stereo, speakers, and seat covers had been stolen from his automobile. Also stolen was a piece of wood which he had painted black and which he had used to mount the speakers in the car. The papers from the glove compartment were strewn about the floor of the car. After making out a police report, he locked the car and went to work. The next evening he sorted through the papers scattered about the floor of the car. Among the papers was a sales receipt for a used 1975 red Chevrolet Caprice, purchased on May 2, 1985, by defendant. The sales receipt also contained defendant's address. The complainant reported his discovery to the police.

Shortly thereafter, Chicago Heights police detective Joseph Fiaoni went to the address displayed on the receipt. Neither the car nor defendant was there that evening. Detective Fiaoni returned on May 8 or 9. At that time, a black-over-red Chevrolet Caprice was parked in front of the house. He looked inside the car and saw stereo equipment that matched the description supplied by the complainant. The speakers were mounted in the back on a piece of black wood. He noticed a man entering the house. (He learned later that the man was defendant.) When the detective knocked on the door, the woman who answered said that defendant was not home and that the man who entered the house was her brother, Ricky. The detective asked whether he could speak to Ricky. The woman went to find out. When she returned she told the detective that Ricky did not want to speak to a police officer. The detective then had the automobile towed to a pound and contacted the complainant, who positively identified the stereo equipment and the piece of black wood as his property. The serial numbers confirmed that the equipment belonged to the complainant.

The detective subsequently obtained a photograph of defendant from another police department. The detective recognized the picture of defendant as the man earlier identified as Ricky. The detective returned to defendant's house with the photograph. He told defendant's father to have defendant voluntarily go to the police station. When defendant did not appear at the station for several days, the detective secured an arrest warrant. A week or two later, however, defendant voluntarily appeared at the police station. He identified himself as Patrick Drake III and said that he is called Ricky. He was arrested and charged with

theft under section 16-1(d)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 16-1(d)(1)). He now contends that the evidence tended to prove that he was the actual thief and that the State therefore failed to prove an essential element of the offense under section 16-1(d)(1), namely, that the property was stolen by another.

(d) Obtains control over stolen property knowing the property to have been stolen by another or under such circumstances as would reasonably induce him to believe that the property was stolen, and

(1) Intends to deprive the owner permanently of the use or benefit of the property."

Section 16 -- 1(d)(1) was the statutory equivalent of the former crime of receiving stolen property. (People v. Frazier (1983), 119 Ill. App. 3d 770, 775, 457 N.E.2d 1028.) Section 16 -- 1(d)(1) proscribed the possession of stolen property (People v. Branch (1984), 123 Ill. App. 3d 245, 249, 462 N.E.2d 868) and was judicially construed to require that defendant not have been the actual thief (see, e.g., People v. Sanders (1984), 127 Ill. App. 3d 471, 476-77, 469 N.E.2d 287; People v. Perkins (1983), 115 Ill. App. 3d 423, 425, 450 N.E.2d 818). However, section 16 -- 1(d)(1) was amended effective July 1, 1984, by Public Act 83 -- 715, which deleted the words, ...


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