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09/24/87 the People of the State of v. Gerald C. Schmidt

September 24, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

GERALD C. SCHMIDT, JR., DEFENDANT-APPELLANT

THE DEFENDANT WAS CHARGED WITH BURGLARY WITH INTENT TO COMMIT THEFT. THE THEFT ELEMENTS RELATED TO SECTION 16-1(A) OF THE CRIMINAL CODE OF 1961 (CODE) (ILL. RE

v.

STAT. 1985, CH. 38, PAR. 16-1(A)), WHICH PROVIDES AS FOLLOWS: "A PERSON COMMITS THEFT WHEN HE KNOWINGLY:



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

514 N.E.2d 494, 161 Ill. App. 3d 278, 112 Ill. Dec. 831

Appeal from the Circuit Court of Adams County; the Hon. David K. Slocum, Judge, presiding. 1987.IL.1424

APPELLATE Judges:

JUSTICE LUND delivered the opinion of the court. SPITZ, P.J., concurs. JUSTICE GREEN, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

Following a jury trial in Adams County, Gerald C. Schmidt, Jr., defendant, was convicted of burglary and theft. Defendant appeals contending the verdicts for burglary and for theft were inconsistent. We agree and reverse.

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

The elements of burglary, with the elements of theft as so described, were instructed to the jury. A verdict of guilty of burglary was returned.

A neighbor to the Schuering residence testified she saw a young man enter the residence through a window on the back porch and later exit from the same window. She further testified that the same man was then apprehended by police on the back porch. The defendant testified that he went to the Schuering home looking for work, and while at the front door, he saw a man run towards the back of the house. Defendant maintained that he then went around to the back of the house, picked up various items which the fleeing man had dropped, and was then apprehended by the police. A police officer testified to apprehending the defendant on the back porch. Defendant requested Illinois Pattern Jury Instructions, Criminal, No. 13.07 (2d ed. 1981), which is the instruction as to theft as defined in section 16-1(d)(1) of the Code (Ill. Rev. Stat. 1985, ch, 38, par. 16-1(d)(1)), which provides:

"A person commits theft when knowingly:

(d) obtains control over stolen property knowing the property to have been stolen 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."

The issues instruction based on this provision was given together with verdict forms for theft under section 16 -- 1(d)(1). A verdict of guilty was returned on the section 16 -- 1(d)(1) theft.

We are not dealing with an included-offense issue. Section 2-9 of the Code (Ill. Rev. Stat. 1985, ch. 38, ...


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