People v. Gibson

• Decision Date: 24 August 1981
• Docket Number: No. 80-264,80-264
• Citation: 425 N.E.2d 1197,55 Ill. Dec. 24,99 Ill.App.3d 616
• Parties: , 55 Ill.Dec. 24 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Theodore GIBSON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1197

425 N.E.2d 1197

99 Ill.App.3d 616, 55 Ill.Dec. 24

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Theodore GIBSON, Defendant-Appellant.

No. 80-264.

Appellate Court of Illinois, Second District.

Aug. 24, 1981.

Mary Robinson, Deputy State Appellate Defender, Josette Skelnik, Asst. State Appellate Defender, Elgin, for defendant-appellant.

J. Michael Fitzsimmons, State's Atty., Barbara Preiner, Asst. State's Atty., Wheaton, for plaintiff-appellee.

VAN DEUSEN, Justice:

After a trial by jury, the defendant, Theodore Gibson, was found guilty of the unlawful use of a credit card in violation of section 8(i) of the Illinois Credit Card Act (Ill.Rev.Stat.1979, ch. 1211/2, par. 608(i)). Prior to sentencing, the defendant informed the court that he wished to plead guilty to a pending charge of forgery. After accepting the defendant's guilty plea, the court sentenced him to concurrent terms of probation for one year plus 30 days in the DuPage County jail. This sentence was for both offenses, the unlawful use of a credit card and the forgery. The defendant appeals from his conviction of the unlawful use of a credit card.

The defendant's conviction stems from his attempt to purchase two jackets from the Sears, Roebuck & Co. store in Oakbrook, Illinois, by using, without permission, a Sears credit card belonging to Roger Burgess. Mr. Burgess had lost a wallet containing the credit card a few days earlier. Testimony adduced by the State established that the defendant brought the two jackets, valued at over $150, to the cashier's counter in the men's clothing department and gave the credit card to the manager of the department. He then expressed his intent to use it for the purchase of the two jackets. The manager wrote the requisite sales slip. Then, because the amount of the sale was over the floor limit for such purchases, he called the central office for approval. Upon direction from the central office, the manager contacted the security department. The defendant and another individual then fled the premises. At trial, the defendant contended that he was not present in the Sears store at the time in question.

On appeal, the defendant's sole contention is that the statutory section under which he was convicted (Ill.Rev.Stat.1979, ch. 1211/2, par. 608(i)) contains no penalty provision and consequently is a nullity. Accordingly, he asserts that his conviction for the unlawful use of a credit card must be vacated.

We note initially that neither party has directed us to a case on point, and our independent research has not discovered any. Apparently, the issue raised on review presents this court with a case of first impression in Illinois.

In relevant part, section 8 of the Illinois Credit Card Act provides:

"A person who, with intent to defraud either the issuer, or a person providing money, goods, property, services or anything else of value, or any other person, (i) uses, for the purposes of obtaining money, goods, property, services or anything else of value a credit card obtained or retained in violation of this Act or without the cardholder's consent, or a credit card which he knows is counterfeited, or forged, or expired, or revoked, or (ii) obtains money, goods, property, services or anything else of value by representing without the consent of the cardholder that he is the holder of a specified card or by representing that he is the holder of a card and such card has not in fact been issued, is guilty of a Class A misdemeanor if the value of all money, goods, property, services and other things of value obtained in violation of this Section does not exceed $150 in any 6-month period; and is guilty of a Class 4 felony if such value exceeds $150 in any 6-month period." (Emphasis added.) Ill.Rev.Stat.1979, ch. 1211/2, par. 608.

It is clear that the statute in question describes two forms of prohibited conduct. The conduct proscribed in section 8(i) involves the mere use of a credit card, regardless of whether goods or property are actually obtained, whereas the conduct prohibited in section 8(ii) pertains to the actual obtaining of goods or property. (See People v. Koonce (1978), 65 Ill.App.3d 86, 87, 22 Ill.Dec. 127, 382 N.E.2d 447.) We point out that section 8 incorporates, albeit in reworded form, the provisions of former section 17-1(e) (1) of the Criminal Code of 1961 (Code) (Ill.Rev.Stat.1971, ch. 38, par. 17-1(e) (1) (repealed October 1, 1973)), which described the offense of deceptive practices committed by the use of a credit card. (See People v. Dismore (1975), 33 Ill.App.3d 495, 498-99, 342 N.E.2d 151.) Former section 17-1(e)(1) provided that it was an offense for a person to obtain or attempt to obtain property by the use of a credit card which was issued to another, without the owner's consent. The penalty provision of that section stated that a person convicted of deceptive practices involving a credit card shall be punished by imprisonment where the value of the property obtained or attempted to be obtained exceeded $150.

The thrust or gravamen of the defendant's argument on appeal is that the penalty provision contained in section 8 of the Illinois Credit Card Act applies only in the event that goods are actually "obtained" by the unlawful use of a credit card. The defendant contends that the statute was intended to penalize only conduct resulting in the actual obtaining of goods. In support of this contention, he emphasizes that, in setting forth the misdemeanor penalty, the penalty provision refers solely to the value of goods "obtained" and does not expressly include the value of goods sought to be obtained, but not actually obtained by the use of a credit card. The defendant correctly states the proposition of law that a statute containing prohibitive language without also providing for a penalty is a nullity. People v. Kimmons (1979), 79 Ill.App.3d 601, 602, 35 Ill.Dec. 353, 399 N.E.2d 187; People v. Natoli (1979), 70 Ill.App.3d 131, 140, 26 Ill.Dec. 266, 387 N.E.2d 1096; People v. Graf (1968), 93 Ill.App.2d 43, 48, 50, 235 N.E.2d 886.

We view the task before us as one involving the construction or the interpretation of the statute at issue. Certain well-established principles exist to guide us in this endeavor. The prime consideration or cardinal rule in construing a statutory enactment is to ascertain and give effect to the intent of the legislature. (People v. Bratcher (1976), 63 Ill.2d 534, 543, 349 N.E.2d 31; People v. Anderson (1947), 398 Ill. 480, 485-86, 76 N.E.2d 773; People v. Floom (1977), 52 Ill.App.3d 971, 974, 10 Ill.Dec. 815, 368 N.E.2d 410; Bee Jay's Truck Stop, Inc. v. Department of Revenue (1977), 52 Ill.App.3d 90, 94, 9 Ill.Dec. 739, 367 N.E.2d 173, cert. denied (1978), 435 U.S. 970, 98 S.Ct. 1610, 56 L.Ed.2d 61.) While the legislative intent is sought primarily from the language used in the statute (Bee Jay's Truck Stop, Inc. v. Department of Revenue), we may also look to the statutory objective and the evils sought to be remedied (People v. Anderson, 398 Ill. at 486, 76 N.E.2d 773; People v. Hubble (1980), 81 Ill.App.3d 560, 563, 37 Ill.Dec. 189, 401 N.E.2d 1282; People v. Floom, 52 Ill.App.3d at 975, 10 Ill.Dec. 815, 368 N.E.2d 410; People v. Spencer (1971), 131 Ill.App.2d 551, 553, 268 N.E.2d 192) and then arrive at a common-sense construction though it may qualify the broad language of the statute (People v. Hubble). Furthermore, the courts are not always bound by the literal meaning of a statutory enactment, particularly if a literal construction would necessitate an absurd result which would defeat the obvious intent of the legislature. (People v. Hubble.) When necessary to achieve the goal of effectuating the legislative purpose, a court may alter, supply or modify words and correct obvious mistakes. People v. Garrison (1980), 82 Ill.2d 444, 455, 45 Ill.Dec. 132, 412 N.E.2d 483; see People v. Bratcher; People v. Anderson; People v. Spencer.

While courts are generally cautious about adding words to a statute, they will read into the meaning of a statutory provision a qualifying or expanding expression plainly implied by the general context of the enactment, which has been palpably omitted and which is essential to prevent the legislative purpose from failing in one of its important...