People v. Somerville

• Decision Date: 16 October 1967
• Docket Number: Gen. No. 51,415.
• Citation: 88 Ill. App.2d 212,232 N.E.2d 115
• Parties: People of the State of Illinois, Appellee, v. Donald Somerville and Marjorie Kullerstrand, Appellants.
• Court: United States Appellate Court of Illinois

88 Ill. App.2d 212

232 N.E.2d 115

People of the State of Illinois, Appellee, v. Donald Somerville and Marjorie Kullerstrand, Appellants.

Gen. No. 51,415.

Illinois Appellate Court — First District, Fourth Division.

October 16, 1967.

Julius Lucius Echeles, of Chicago, for appellants.

John J. Stamos, State's Attorney of Cook County, of Chicago (Elmer C. Kissane and James A. Stamos, Assistant State's Attorneys, of counsel), for appellee.

MR. JUSTICE McCORMICK delivered the opinion of the court.

The defendants, Donald Somerville and Marjorie Kullerstrand, were indicted on November 3, 1965. The indictment charged that on March 24, 1963, they had committed the offense of theft¹ in that they knowingly obtained unauthorized control over stolen property, to wit: $1,300 in United States currency, the property of Zayre of Bridgeview, Inc., knowing the said property to have been stolen by another, and intending to deprive said Zayre of Bridgeview, Inc., permanently of the use and benefit of said property, in violation of chapter 38, section 16-1 (d) of the Illinois Revised Statutes (1963).

The case was tried before a jury and a verdict was returned finding defendants guilty. Donald Somerville was sentenced to 2 to 10 years in the penitentiary, and Marjorie Kullerstrand was placed on probation for three years. In this court the defendants urge:

1) That they were twice put in jeopardy for the same offense;

2) That the State improperly suggested the existence of damaging evidence by means of cross-examination, but failed to impeach the denials of the defendants;

3) That the State improperly presented evidence outside the scope of cross-examination impugning the morals of the defendants.

A previous indictment had been returned against the defendants on March 19, 1964, which indictment charged them with committing the offense of theft on March 24, 1963, in that they knowingly obtained unauthorized control over stolen property, to wit: $1,300 in United States currency, the property of Zayre of Bridgeview, Inc., knowing the same to have been stolen by another in violation of chapter 38, section 16-1(d), Ill Rev Stats 1963.

A jury trial was commenced on the first indictment and twelve jurors were duly impaneled and sworn on November 1, 1964, after which the trial was continued to the next day. On November 2, the State's Attorney moved for a mistrial and to nolle prosse on the ground that the indictment did not allege a crime and was therefore void. The court granted the State's motion over defendants' objection. A juror was withdrawn from the box and a mistrial declared.

On November 3, 1965, a second indictment was returned, charging the defendants with the offense of theft on March 24, 1963, as set forth above. Defendants were arraigned on the second indictment on November 16, 1965. Thereupon, the defendants filed a motion to dismiss the indictment on the grounds that they had previously been indicted on March 19, 1964; that a jury was selected and sworn to try the issues; and that "on November 2, 1965 the State made a motion to Nolle Prosse said indictment which was sustained over the objection of your petitioner." The motion further recited: "4. That the only difference between indictment 64-916 and indictment 65-3017 is that the words `intends to deprive the owner permanently of the use ... property' have been added to the latter indictment." The court denied the motion.

1, 2 Before us defendants argue that since the trial was commenced under the first indictment (64-916) and a jury impaneled and sworn, the defendants were thereby placed in jeopardy, and consequently the court must discharge them. In their brief defendants state:

"Sec 3-4(a)(3), Chap 38 states that `A prosecution is barred if the defendant was formerly prosecuted for the same offense, based upon the same facts, if such former prosecution ... (3) was terminated improperly after the jury was impaneled and sworn...'" (Emphasis added.)

In order to have the statute apply it is necessary that the first prosecution be terminated improperly. In the Notes in Smith-Hurd Annotated Statutes to the section in question the statement is made:

"The point at which jeopardy attaches in a jury trial is generally considered to be that at which, in a court of competent jurisdiction and upon a valid indictment or information, the defendant has been arraigned and has pleaded, and the jury has been impaneled and sworn."

In 22 CJS, Criminal Law, § 246, it is stated:

"... the general rule is that, in order that jeopardy may attach, there must be a valid indictment, ... So, where the indictment or information is so defective in form or substance that it will not support a conviction, it cannot form the basis of proceedings which will put accused in jeopardy and bar another prosecution..."

In People v. Edge, 406 Ill. 490, 94 NE2d 359, the court said at 493:

"To give a court jurisdiction in a criminal case, it is essential that the indictment or information charge the accused with a crime. (People v. Harris, 394 Ill. 325; People v. Nickols, 391 Ill. 565.) Moreover, where the statutory definition of a crime includes the intent with which the act is committed as an element of the offense, the intent must be alleged. (People v. Harris, 394 Ill. 325; People v. Barnes, 314 Ill. 140.)"

In People v. Harris, 394 Ill. 325, 327, 68 NE2d 728, the court said:

"The essential elements of the crime of receiving stolen property as prescribed by section 239 of division I of the Criminal Code (Ill Rev Stats 1945, chap 38, par 492,) are: (1) that the property has, in fact, been stolen by a person other than the one charged with receiving it; (2) that the one charged with receiving it had actually received the property stolen or aided in concealing it; (3) that the receiver knew that the property was stolen at the time he received it; and (4) that he received the property for his own gain or to prevent the owner from again possessing it.² People v. Dalke, 336 Ill. 446; People v. Prall, 314 Ill. 518; People v. Ensor, 310 Ill. 483."

The court also said:

"It has been held that where the statutory definition of a crime includes the intent with which the act was committed as an element of the offense, it is necessary that the intent should be alleged. In McCutcheon v. People, 69 Ill. 601, it was said: `Where the intent is mentioned as an element of the offense created by a law, it ought to be alleged; .. .'"

Without such an allegation the court held that the indictment does not set forth a crime as defined by statute. Also see People v. Goffman, 30 Ill.2d 501, 198 NE2d 323.

3, 4 Chapter 38, section 16-1, previously quoted in this opinion, states the requirements for an indictment or conviction of theft where the party obtains control over stolen property knowing the property to have been stolen by another. Under the rule laid down in People v. Edge and People v. Harris, supra, the first indictment was fatally defective and void. The court ruled properly in denying defendants' motion to discharge defendants at the time of the trial of the second indictment.

The State introduced evidence that there was a robbery at Zayre of Bridgeview, Inc.; that about $22,000 was taken, $9,000 of which was dropped in the vestibule and recovered.

Leon Arnold, the State's chief witness, testified that while drinking with one Douglas Aldridge on March 23, 1963, in the early evening he met Eddie Somerville,³ and that they went to Eddie's home near Blue Island, where they found Paul Langusch, Robert Somerville and his brother, Gail Somerville.⁴ Arnold further testified that they later robbed the Zayre store; that the next day Gail Somerville picked up Douglas and Arnold and drove them to the home of defendant Marjorie Kullerstrand, where they saw Robert, Eddie and Donald Somerville and Paul Langusch. At that time Donald Somerville was a police officer in the City of Chicago. Arnold stated that when he was introduced Donald Somerville asked Aldridge how it went and Aldridge said "It was rough." He further testified that Aldridge then asked if anyone knew how the man was who was shot and Donald Somerville said he was okay. Arnold testified that they then "gave them what money we had and they put it on a coffee table"; that the money was counted, totaling $13,000, and divided as follows: Arnold, Aldridge, Langusch and Eddie Somerville each received $2,500, and Robert, Gail and Donald Somerville $1,000 each; that Donald...