APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
547 N.E.2d 657, 191 Ill. App. 3d 144, 138 Ill. Dec. 490 1989.IL.1818
Appeal from the Circuit Court of Winnebago County; the Hon. Harris H. Agnew, Judge, presiding.
JUSTICE McLAREN delivered the opinion of the court. INGLIS, J., concurs. JUSTICE REINHARD, Dissenting.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCLAREN
Defendant, Raymond Thingvold, was charged by information with the offense of solicitation (Ill. Rev. Stat. 1985, ch. 38, par. 8-1). He allegedly solicited George Nalan over a period of time to arrange the murder of defendant's wife, Barbara Thingvold. He was found guilty and sentenced to a prison term of 25 years.
Defendant initially attacks the sufficiency of the information under which he was charged, contending that it failed to properly allege that the offense occurred within the applicable statute-of-limitations period or to adequately plead an exception to the statute. We disagree.
A prosecution for the offense of solicitation must commence within three years of the commission of the crime. (Ill. Rev. Stat. 1987, ch. 38, par. 3-5(b).) When the offense is based on a series of acts performed at different times, the limitation period starts when the last such act is committed. Ill. Rev. Stat. 1987, ch. 38, par. 3-8.
The information in this case was filed on June 25, 1987. However, it charged that defendant committed the offense of solicitation "between the dates of December 1, 1983 and . . . the 30th day of April, 1986," and that the offense was "being based upon a series of acts performed at different times." The information also specifically referred to section 3-8 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 3-8). The period of December 1, 1983, through June 24, 1984, is clearly outside the three-year statutory boundary. The State argues that it has remedied the problem by alleging that defendant's offense is a series of acts committed in a period of time which ended within the limitation period. Therefore, the entire series of defendant's actions would be within the statute of limitations.
Nowhere, however, does the information allege that any of defendant's actions were performed within the limitation period. No facts are alleged that even the last of the series of acts occurred after June 24, 1984. Defendant cites as controlling in this situation People v. Toolen (1983), 116 Ill. App. 3d 632. In Toolen, the indictment alleged that criminal conduct occurred between "'January 1, 1979 and October, 1980.'" (Toolen, 116 Ill. App. 3d at 653.) However, the first month of that period lay outside the limitation period. The indictment alleged no facts to establish that the last of a series of acts occurred any time after the first month. The court there ruled that the failure to allege such facts rendered the indictment insufficient to charge an offense. Toolen, 116 Ill. App. 3d at 653.
We are not persuaded by the reasoning in Toolen. Our supreme court has held that if a charging document does not allege that the crime was committed within the period fixed by the statute of limitations, facts must be alleged and proved which would toll the running of the statute under the various provisions, including section 3 -- 8. (People v. Strait (1978), 72 Ill. 2d 503, 505-06.) The grounds on which the State seeks to toll the statute should be stated in the information with sufficient specificity to enable defendant to defend against them. (Strait, 72 Ill. 2d at 506.) We conclude that the information in the case before us was sufficiently explicit to enable defendant to prepare his defense and to apprise him that the last act occurred within the time prescribed by the statute of limitations. The information alleges the applicability of section 3 -- 8, which places defendant on notice that he is being charged with a series of actions in the period shown. The fact that no one particular act was alleged to have occurred within the limitation period is not fatal. In addition, the court instructed the jury that, to sustain the charge of solicitation, the State must prove, among other things, "[t]hat the defendant . . . encouraged or requested George Nalan on at least one occasion within three years prior to April 23, 1987." Thus, defendant could not be convicted if the State could not prove that at least one of the alleged actions took place within the limitation period. We conclude that the information adequately charged defendant and allowed him to prepare his defense. Therefore, the judgment will not be reversed on this basis.
Defendant next contends that the trial court abused its discretion in allowing testimony of three men who claimed that defendant also solicited them to kill his two wives.
Roger Atkinson testified that, between 1974 and 1976, defendant on more than one occasion brought up the possibility of having his wife at that time, Diane, killed. Atkinson, defendant, and possibly other co-workers discussed methods of killing Diane so that defendant could collect a large insurance settlement. In addition, Atkinson testified that defendant asked him if he knew anyone that would do the job, to which he replied in the negative. Defendant and Diane were divorced in 1978.
Sid Haffendon, a former co-worker of defendant for several years, testified that, between 1980 and 1986, defendant and he discussed killing defendant's second wife, Barbara, numerous times. Haffendon testified that defendant tried to enlist his aid in transmitting money to a hired killer on several occasions and offered him financial incentives, such as a new car and a partnership in a business venture, to get involved. Defendant had even chosen the method with which to kill her; since Mrs. Thingvold had undergone a stomach operation, a stab wound to the stomach would most ...