People v. Jackson

• Decision Date: 29 July 1987
• Docket Number: No. 5-86-0156,5-86-0156
• Parties: , 110 Ill.Dec. 746 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Bobby Joe JACKSON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 923

511 N.E.2d 923

158 Ill.App.3d 394, 110 Ill.Dec. 746

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Bobby Joe JACKSON, Defendant-Appellant.

No. 5-86-0156.

Appellate Court of Illinois,

Fifth District.

July 29, 1987.

Rehearing Denied Aug. 26, 1987.

Daniel M. Kirwan, Deputy Defender, Office of the State Appellate Defender, Mt. Vernon, Dan W. Evers, Asst. Appellate Defender, Nancy Abell, Senior Law Student, Southern Illinois University School of Law Research Asst., for defendant-appellant.

Dennis Middendorff, State's Atty., Carlyle, Kenneth R. Boyle, Director, Stephen E. Norris, Deputy Director, Wendy B. Porter, Staff Atty., Office of the State's Attys. Appellate Prosecutor, Mt. Vernon, for plaintiff-appellee.

Justice LEWIS ¹ delivered the opinion of the court:

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 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 * * *

(d) * * * and

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

Subsection (e)(3) of section 16-1 provides with regard to sentence that "[t]heft 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 "[t]heft of property, other than a firearm, not from the person and not exceeding $300 in value is a Class A misdemeanor." 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 back seat 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 (1973, Mo.App.) 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 on the person of the victim,

"[t]he stealing of property from the person has been from an early period, under the English statutes, treated as a much graver and more heinous offense than ordinary or common theft,--partly by reason of the ease with which it could be perpetrated, and the difficulty of guarding against it, and partly because of the greater liability of endangering the person or life of the victim. The same general reason and purpose animate the modern statutes, including our own, and, as in England, the offense is made punishable as a felony. The difficulty has been in defining with precision in all cases what constitutes a taking from the person, and this has given rise to some confusion in the authorities on the question as to whether the property must be actually on, or attached to, the person, or merely under the eye, or within the immediate reach, and so constructively within the control, of the owner." (116 Cal. 583, 584, 48 P. 718, 718.)

The court in Terral v. State, which likewise held that one may not lawfully be convicted of the crime of larceny from the person when the property taken was near the victim but not on his person, noted that the gravamen of the offense of larceny from the person is "that the person of another has been violated and his privacy directly invaded" (84 Nev. 412, 414, 442 P.2d 465, 466). In State v. Blow, in which the defendant contended that the trial judge improperly charged larceny from the person because the $160 he admitted stealing was taken not from the victim's person but from beneath the car seat upon which the victim was sitting, the court concluded that larceny from the person includes the theft of money, goods, or chattels that are within the immediate custody and control of the victim, noting that the danger of confrontation between thief and victim had been present and that the victim's person and privacy had been invaded. So too in the instant case was the danger of confrontation as great as it would have been had the victim's wallet been in a pocket of his clothing rather than beneath the front seat of his car. Nor was the victim's privacy any less invaded because the items when taken were in his presence rather than on his person. Certainly in the attempt to locate the victim's wallet his person was violated.

We find particularly instructive and persuasive the analogy of the robbery statute (Ill.Rev.Stat.1985, ch. 38, par. 18-1) with the statute pertaining to theft from the person. The use of force or the threat of the imminent use of force is an essential element in the crime of robbery and is the element that differentiates robbery from theft. (People v. Williams (1976), 42 Ill.App.3d 134, 355 N.E.2d 597.) Where an article is taken without any sensible or material violence to the person, the offense will be held to be theft from the person rather than robbery. (People v. Patton (1979), 76 Ill.2d 45, 27 Ill.Dec. 766, 389 N.E.2d 1174.) The robbery statute, in section 18-1(a), provides that "[a] person commits robbery when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force." The Committee Comments to that section state that the words "or presence" were added to incorporate the holding of the court in People v. Braverman (1930), 340 Ill. 525, 173 N.E. 55. The court held in Braverman that property stolen in a robbery need not be in actual contact with the person of the one from whom it was taken:

"Robbery, as defined by the statute, is the felonious and violent taking of money, goods or other valuable thing, from the person of another by force or intimidation. The indictment was in the language of the statute, and it is argued that to constitute robbery the taking of the money must have been from the person of Glickman [the manager of the store in which the robbery occurred who was forced to open the safe]. The words 'taking from the person of another,' as used in the common law definition of robbery, were not restricted in their application to those cases in which the property stolen was in actual contact with the person of the one from whom it was taken, but included within their meaning the taking, by force or intimidation from the presence of the person assaulted, of property which either belonged to him or was under his personal control and protection ...