People v. Kelly

• Decision Date: 30 December 1965
• Docket Number: Gen. No. 50702
• Citation: 214 N.E.2d 290,66 Ill.App.2d 204
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Alfred KELLY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 290

214 N.E.2d 290

66 Ill.App.2d 204

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Alfred KELLY, Defendant-Appellant.

Gen. No. 50702.

Appellate Court of Illinois, First District, Fourth Division.

Dec. 30, 1965.

Gerald W. Getty, Public Defender of Cook County, Chicago, James J. Doherty, Frederick F. Cohn, Asst. Public Defenders, of counsel, for appellant.

Daniel P. Ward, State's Atty., Elmer Kissane, Asst. State's Atty., Chicago, for appellee.

ENGLISH, Justice.

In a bench trial defendant was convicted of theft and, on a finding that the property stolen exceeded $150 in value, he was sentenced to the penitentiary for a term of three to six years. The only point raised by defendant on this appeal is that the evidence failed to show that the stolen automobile had a value in excess of $150. In his brief he contends, therefore, that the sentence should be reduced to one appropriate to a misdemeanor for theft of property not exceeding $150 in value. The indictment which was returned on August 17, 1964 charged defendant with theft of property exceeding $150 in value, in violation of Section 16-1(a) of the Criminal Code. ¹ Ill.Rev.Stat. (1963), ch. 38, § 16-1(a).

A Behavior Clinic examination was conducted, and, after a sanity hearing, on a jury's verdict, defendant was adjudged competent to stand trial. A jury was waived and, at the conclusion of the evidence, the trial judge found defendant guilty of 'grand theft, value of property over $150.00.' Judgment using the same terminology was entered (as set forth in the common law record), and the usual posttrial motions were denied. A hearing was held to consider matters in aggravation and mitigation, and sentence was imposed as related above. The sentence also included the language quoted in this paragraph concerning 'grand theft' and the value of the property stolen.

The report of proceedings discloses testimony that a garageman had estimated the cost of repair of the stolen 1959 Chevrolet automobile at $500, it having been wrecked at the time of defendant's arrest. We agree with defendant that this testimony does not necessarily evidence the value of the car at more than $150. People v. Fognini, 374 Ill. 161, 28 N.E.2d 95. The only testimony bearing directly on value is that of the complaining witness who frankly stated that he did not know if his automobile was worth more than $150 at the time of its theft.

The significance of the value of the stolen property is at once apparent upon examination of the penalty provisions of Section 16-1 which read:

A person first convicted of theft of property not from the person and not exceeding $150 in value shall be fined not to exceed $500 or imprisoned in a penal institution other than the penitentiary not to exceed one year, or both. A person convicted of such theft a second or subsequent time, or after a prior conviction of any type of theft, shall be imprisoned in the penitentiary from one to 5 years. A person convicted of theft of property from the person or exceeding $150 in value shall be imprisoned in the penitentiary from one to 10 years.

When it came time for the State to file its brief in this court, the State's Attorney filed instead a Confession of Error in which he acknowledged the record's lack of proof of the stolen automobile's value, and moved the court to reverse the conviction and remand the cause for a new trial. No objections or counter-suggestions were filed by defendant, and, in the absence of objection, the motion was allowed as a matter of routine.

Several weeks thereafter defendant presented a motion to vacate the order reversing and remanding the cause for a new trial, arguing that, under the circumstances, defendant was entitled to an outright reversal. Again we have been left to pass on the motion unilaterally, as this time the State's Attorney has seen fit not to object.

Presently confronting us, therefore, are three alternatives: (1) to affirm the trial court's sentence of three to six years for 'grand theft,' (2) to recognize the State's claim that there should be reversal and remandment for a new trial, or (3) to accede to the defendant's contention that his conviction should be reversed outright without remand or modification. We are of the opinion that none of these positions is correct, and we elect to follow a fourth route of our own choosing.

Considering first the State's Confession of Error as requiring reversal, we are not bound to recognize as error whatever a party may confess to be such, nor are we bound to follow the suggested remedy of either party for the cure of any such confessed error. As stated by the Supreme Court in Young v. United States, 315 U.S. 257, 258-259, 62 S.Ct. 510, 511, 86 L.Ed. 832:

The public trust reposed in the law enforcement officers of the Government requires that they be quick to confess error when, in their opinion, a miscarriage of justice may result from their remaining silent. But such a confession does not relieve this Court of the performance of the judicial function. The considered judgment of the law enforcement officers that reversible error has been committed is entitled to great weight, but our judicial obligations compel us to examine independently the errors confessed. See Parlton v. United States, 64 App.D.C. 169, 75 F.,2d 772. The public interest that a result be reached which promotes a well-ordered society is formost in every criminal proceeding. That interest is entrusted to our consideration and protection as well as that of the enforcing officers. Furthermore, our judgments are precedents, and the proper administration of the criminal law cannot be left merely to the stipulation of parties. (Citing cases.)

See also United States ex rel. Marino v. Holton, 227 F.2d 886, 893-895 (7th Cir.), cert. den. 350 U.S. 1006, 76 S.Ct. 650, 100 L.Ed. 868.

It would appear that the term 'grand theft' and the allegations and findings as to property value employed throughout these proceedings have misled the State's Attorney into the belief that defendant's conviction may not stand in the absence of proff that the stolen automobile exceeded $150 in value. This is not true, however, as the only crime with which we are here concerned is that of 'theft.' Theft is committed by the stealing of 'anything of value,' regardless of the amount thereof. Ill.Rev.Stat., ch. 38, § 15-1. The particular value of the property relates only to the nature and extent of the penalty which may properly be imposed.

When the State seeks the maximum penalty permitted by the statute, by alleging in the indictment a property value in excess of $150 (as in this case), and the proof fails as to value only, it does not follow that the crime of 'theft' has not been proved. The court may take judicial notice of the fact that a 1959 Chevrolet driveable in 1964 is a thing of some value even though it may not, without more proof, conclude that the value exceeds $150. People v. Dunsworth, 323 Ill.App. 470, 474-478, 56 N.E.2d 52.

We are of the opinion, therefore, that the record shows defendant to have committed the crime of theft. ² In this circumstance, neither defendant's argument nor the State's Attorney's Confession of Error affords any ground for reversal of the judgment in so far as it finds defendant guilty of theft. The Confession of Error was properly presented, however, to point out that the record affords no basis for a sentence of three to six years.

In his brief as originally filed, defendant contended that this court should exercise its authority under Section 121-9(b)(3) of the Code of Criminal Procedure to reduce the degree of the offense of which he had been convicted. Ill.Rev.Stat. (1963), ch. 38, § 121-9(b)(3). We undoubtedly have that power, and it is an extremely valuable judicial tool, the use of which is warranted in cases involving 'included offenses.' From what we have said, though, it can be seen that we do not consider 'petty theft' to be an included offense in 'grand theft.' Ill.Rev.Stat. (1963), ch. 38, § 2-9. The crime is simply 'theft.' But another power was granted by the Code of Criminal Procedure which does make it possible for us to determine this case without remand for correcting the sentence. Pursuant to Section 121-9(b)(4) we may '[r]educe the punishment imposed by the trial court.' ³

To what, then, should the sentence be reduced? If we were to rely solely on the aspect of the property's value, the penalty would have to be limited to a fine and/or jail sentence. Other matters in the record, however, not brought to our attention by either party, place a different light on the question and require a penitentiary sentence.

The penalty paragraph of Section 16-1 (quoted above) provides a mandatory sentence within the range of one to five years for a person convicted of theft (where the property stolen does not exceed $150 in value) after a prior conviction of any type of theft. As mentioned earlier in this opinion the trial court, prior to sentence, conducted a hearing as to matters in aggravation and mitigation. The record includes a stipulation that defendant had been convicted of grand larceny in 1956 and sentenced to the Mississippi penitentiary for a term of two years. The record also shows that in 1961 defendant was convicted of petty theft in Chicago and sentenced to one year in the House of Correction. ⁴

We conclude from this record that an appropriate sentence in this case would be a term of not less than one nor more than five years and defendant's sentence should therefore be reduced accordingly.

In reaching this decision we are mindful of the fact that the indictment did not allege the defendant's prior theft convictions. We are also aware of decisions which have held that prior convictions must be pleaded in order to justify conviction and sentence under a statute providing for the imposition of an aggravated penalty upon recidivist offenders; e. g., People v. Hightower, 414 Ill. 537, 544-545, 112...