People v. Parks

• Decision Date: 14 June 1971
• Docket Number: Gen. No. 55438
• Citation: 273 N.E.2d 162,133 Ill.App.2d 348
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Raymond Paul PARKS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 162

273 N.E.2d 162

133 Ill.App.2d 348

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Raymond Paul PARKS, Defendant-Appellant.

Gen. No. 55438.

Appellate Court of Illinois, First District, First Division.

June 14, 1971.

Gerald W. Getty, Public Defender of Cook County, Chicago, for appellant; Judith C. Smith, Ronald P. Katz, James J. Doherty, Asst. Public Defenders, of counsel.

Edward V. Hanrahan, State's Atty. County of Cook, Chicago, for appellee; Robert A. Novelle, Martin Molitz, Asst. State's Attys., of counsel.

GOLDBERG, Justice.

Defendant was indicted for burglary. After a jury trial, he was found guilty and sentenced to serve two to three years in the penitentiary. On direct appeal to the Supreme Court of Illinois, the case was transferred here. Defendant contends: 1) he was wrongfully indicted for burglary instead of looting; 2) an improper instruction was given and a necessary instruction omitted; 3) the evidence failed to prove guilt beyond a reasonable doubt; and 4) the jury was prejudiced by improper argument by the prosecutor. After stating the facts, we will consider these contentions in order.

On April 5, 1968, there were riotous conditions in portions of the City of Chicago. One of these troubled areas was on North Cicero Avenue. About 9:00 p.m., two police officers drove by a local clothing store and the premises were 'intact.' About 9:30 p.m. they saw two men in the store with one of them apparently rifling a filing cabinet. The other man, the defendant, was pulling clothes from a rack and throwing them to the floor.

The officers observed that the front and rear windows of the store had been broken. When they entered, one man ran up to a loft but he was taken into custody. The defendant attempted to hide in a large garment bag but was found and arrested. The filing cabinet in the store had been ransacked and papers were strewn about the premises. Clothing from the racks had been placed upon the floor. Some women's and children's dresses were tied into a bundle. No contradictory or other evidence was offered by the defense.

We will consider first the question raised upon the pertinent statute. The statutes define burglary (Ill.Rev.Stats.1969 C 38 § 19--1), and also define the separate offense of looting. Ill.Rev.Stats.1969 C 38 §§ 42--1, 42--2. The offense of looting is defined as entering upon premises, 'in which normal security of property is not present by virtue of a * * * riot, mob or other human agency' and the offense is completed where the defendant obtains or asserts control over property of the owner. Defendant contends that the looting statute, as a special act designed to deal with a specific situation, should here supersede the general burglary statute. We concede the existence of the principle of statutory construction by which a special law or a particular enactment is deemed operative as against general laws upon the same subject. Estate of Schwendeman v. State Savings and Loan Association, 112 Ill.App.2d 273, 276, 251 N.E.2d 99; Mills v. County of Winnebago, 104 Ill.App.2d 366, 372, 244 N.E.2d 65; People v. Canada, 81 Ill.App.2d 220, 231, 225 N.E.2d 639 and People v. Hale, 55 Ill.App.2d 260, 263, 204 N.E.2d 833. In Hale, defendant objected to the fact that he was punished under the specific statute governing escapes from the Illinois State Farm. He contended that the general enactment concerning escapes was applicable. The court rejected this contention.

The principle advanced by defendant is not applicable here. In People v. Mitchell, Ill.App., 268 N.E.2d 232, this court considered and rejected the identical contention. The court cited another recent opinion of this court which specifically set forth that the legislature could not have intended 'to frustrate and impede prosecutions for burglaries perpetrated during periods of civil disturbance and treat burglars differently simply because lack of security made their job easier.' People v. Long, 126 Ill.App.2d 103, 108, 261 N.E.2d 437, 440. In both of these recent opinions, the court also cited People v. Rhodes, 38 Ill.2d 389 in which the Supreme Court pointed out that it is the responsibility of the State's attorney of the county to consider the evidence in his possession and to determine the proper offense with which an accused should be charged. We note parenthetically the decision of the Supreme Court in People v. Thompson, 48 Ill.2d 41, 268 N.E.2d 369. The court affirmed a conviction for a burglary which took place on April 5, 1968 during a riot precisely as in the case at bar. Although the point was not raised, the statute on looting was not applied.

This case does not present a distinction between a specific and a general enactment. We are dealing here with two paralled but different statutes in which separate substantive elements are involved. The responsibility and the choice of which statute to use rested primarily upon the State's attorney. This record shows overwhelming evidence of all factual elements required for guilt of burglary. Based upon all of the evidence, the choice is approved without hesitation. The looting statute is patently intended as an amelioration for persons caught up in an emotional situation who may succumb to temptation. It was never intended, and will not be used by this court, as a device to make burglary a sinecure. In the case at bar, the coincidental presence of the riots in adjacent areas cannot militate against strong and unrefuted evidence of burglary.

Defendant next contends that the court erred in instructing the jury. Defendant raised timely objection to People's Instruction No. 7 in which the court instructed the jury (IPI--Criminal 3.04):

Motive is that which prompts a person to act. The State is not required to prove a motive for the commission of the crime charged.

There is no requirement that the State prove the motive which operated to impel the commission of the offense. People v. Hobbs, 35 Ill.2d 263, 268--269, 220 N.E.2d 469; People v. Gullickson, 115 Ill.App.2d 157, 164, 253 N.E.2d 66 and People v. Irvin, 104 Ill.App.2d 316, 325, 244 N.E.2d 351. The instruction as given was thus a proper statement of the law. Authorities cited by defendant such as People v. Lawson, 351 Ill. 457, 184 N.E. 606 are not applicable here. In Lawson, an instruction was given on the issue of flight from the scene when no such evidence was produced. We, therefore, hold that the giving of People's Instruction No. 7 was not prejudicial error.

The next point on the instructions revolves about failure of the court to instruct the jury as to the meaning of the word 'theft.' It is conceded that the court properly gave People's Instruction No. 10 defining burglary (IPI--Criminal 14.05) and also People's Instruction No. 11 stating the issues in a burglary trial (IPI--Criminal 14.06). However, the point is made that the word 'theft' is a term of art which should have been defined for the jury. This argument is based upon the decision by this court in People v. Davis, 74 Ill.App.2d 450, 221 N.E.2d 63. This court has had occasion to consider and reject this identical contention. People v. Gibson, 270 N.E.2d 110, 1971. As pointed out in Gibson, the Davis opinion involved a trial for attempt robbery. The jury was instructed only as to the definition of attempt but there was no instruction which defined the specific crime of robbery. In our opinion, this factor completely differentiates Davis from the case at bar. Within the context of the evidence here, the word 'theft' is a simple word of common usage. As defined in every dictionary, it means simply the unlawful taking of property. No instruction to this effect was necessary.

In addition, another well established legal principle disposes adversely of this contention. The evidence presented by this record is uncontradicted and overwhelming. Both of the alleged errors on instructions suggested by defendant could not...