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07/29/87 the People of the State of v. Bobby Joe Jackson

July 29, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

BOBBY JOE JACKSON, DEFENDANT-APPELLANT

(D) . . . AND (1) INTENDS TO DEPRIVE THE OWNER PERMANENTLY OF THE USE OR BENEFIT OF THE PROPERTY . . .." (ILL. RE

v.

STAT. 1985, CH. 38, PAR. 16-1.)



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

511 N.E.2d 923, 158 Ill. App. 3d 394, 110 Ill. Dec. 746 1987.IL.1083

Appeal from the Circuit Court of Clinton County; the Hon. Dennis Huber, Judge, presiding.

APPELLATE Judges:

JUSTICE LEWIS* delivered the opinion of the court. WELCH and HARRISON, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEWIS

The defendant, Bobby Joe Jackson, was charged with the offense of robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18-1) and, later, with the offense of the theft from the person (Ill. Rev. Stat. 1985, ch. 38, par. 16-1). The trial court granted the defendant's motion for a directed verdict with regard to the charge of robbery but denied the motion with respect to the charge of theft from the person and a jury found him guilty of the latter offense. Because of the defendant's prior criminal record the trial court sentenced him to the Department of Corrections for a term of five years. The defendant presents two issues for our review: (1) whether his conviction of theft from the person must be reversed "because no property was taken from the victim's person but only from the victim's automobile" and (2) whether the cause should be remanded for a hearing on the defendant's pro se post-trial motion for a new trial in which he indicated, inter alia, that he had been denied the effective assistance of counsel.

Section 16 -- 1 of the Criminal Code of 1961 provides in pertinent part:

"A person commits theft when he knowingly:

(a) Obtains or exerts unauthorized control over property of the owner . . .

Subsection (e)(3) of section 16-1 provides with regard to sentence that "[theft] of property from the person or exceeding $300 is a Class 3 felony." Subsection (e)(1) of section 16-1 provides with regard to sentence that "[theft] of property, other than a firearm, not from the person and not exceeding $300 in value is a Class A misdemeanor." (Ill. Rev. Stat. 1985, ch. 38, pars. 16-1(e), (1), (3).) The defendant asks us to reverse his conviction for the offense of theft from the person and remand the cause for resentencing as a Class A misdemeanor.

At trial the victim, Neil Bruce Balding, testified for the State that on September 30, 1985, at about 7:30 p.m., he had stopped at the Posey rest stop. The victim stated that as he was returning to his car, the defendant approached him with the words, "I was talking to you." Repeating the statement, the defendant "pushed" the victim against the victim's car and asked him if he had his billfold. When the victim responded that he "didn't have one," the defendant "reached behind and seen [ sic ] if I had one in my pocket and I didn't." Then the defendant opened the door on the driver's side of the car, felt underneath the driver's seat, and removed the victim's wallet, from which he removed about $190, a Visa card, and a Mastercard. From the backseat the defendant took a radio-cassette player. While the defendant was getting the billfold from the car, the victim said, a second man approached the car and received the keys from the defendant, who had removed them from the ignition. The second man opened the trunk and emptied its contents. The defendant testified that on the date in question he was at Patty's Pub in Collinsville drinking beer from 10 a.m. until 8 or 9 p.m. and was not at the site of the offense.

The defendant contends that the State failed to prove him guilty beyond a reasonable doubt of the offense of theft from the person because the facts clearly indicate that the victim did not have any property taken from his person. The State maintains that the defendant was proved guilty of theft from the person because the words "from the person" in the theft statute include the taking of property not only from the actual person of the victim but also from the presence of the victim where the property taken was under the care, control, or protection of the victim.

The parties agree that there are no Illinois cases that address the precise issue presented, whether one may lawfully be convicted of the offense of theft from the person when the property taken was in the presence of the victim but not on his or her person. Of the jurisdictions that have considered the issue, some have taken the position that the property when taken must have been on the person of the victim (Wilder v. State (1941), 30 Ala. App. 107, 1 So. 2d 317; People v. McElroy (1897), 116 Cal. 583, 48 P. 718; State v. Crowe (1977), 174 Conn. 129, 384 A.2d 340; Terral v. State (1968), 84 Nev. 412, 442 P.2d 465; State v. Lucero (1972), 28 Utah 2d 61, 498 P.2d 350), whereas others have taken the view that the property when taken need be merely within the immediate presence of the victim and not necessarily upon his or her person (Banks v. State (1946), 74 Ga. App. 449, 40 S.E.2d 103; State v. Kobylasz (1951), 242 Iowa 1161, 47 N.W.2d 167; Commonwealth v. Subilosky (1967), 352 Mass. 153, 224 N.E.2d 197; State v. Jones (Mo. Ct. App. 1973), 499 S.W.2d 236; State v. Blow (1975), 132 N.J. Super. 487, 334 A.2d 341).

As the court observed in People v. McElroy, which, as we said, required that the property when taken be ...


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