People v. Tuczynski

• Decision Date: 30 June 1978
• Docket Number: No. 77-888.,77-888.
• Citation: 62 Ill. App.3d 644,378 N.E.2d 1200
• Parties: THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ZENON TUCZYNSKI, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

62 Ill. App.3d 644

378 N.E.2d 1200

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ZENON TUCZYNSKI, Defendant-Appellant.

No. 77-888.

Illinois Appellate Court — First District (5th Division).

Opinion filed June 30, 1978.

Chester A. Lizak, of Chicago, for appellant.

Bernard Carey, State's Attorney, of Chicago (Lee T. Hettinger and James S. Veldman, Assistant State's Attorneys, of counsel), for the People.

Judgment affirmed.

Mr. PRESIDING JUSTICE SULLIVAN delivered the opinion of the court:

In a bench trial, defendant was convicted of attempt theft and attempt theft by deception and sentenced to two years probation. On appeal, he contends that (1) the complaints did not sufficiently charge the offense of attempt theft; (2) the trial court erred (a) in trying the complaints together, (b) in allowing defendant to continue representing himself when it became apparent that he did not understand the elements of the offense charged and (c) in permitting evidence of similar conduct by defendant against third parties; and (3) the offense as charged in one of the complaints was not proven.

The relevant facts are not in dispute. Defendant is the owner and publisher of the Jednosc and Polish Courier newspapers. His wife, his brother, and several part-time employees assist him in publishing both of those newspapers.

In 1976, Casimir Laskowski and Edward Novak filed separate complaints against defendant for billing them for advertisements in his newspapers that they had not ordered. The Laskowski complaint alleged that:

"Zenon Tuczynski * * * committed the offense of attempt, in that he with intent to commit the offense of theft by deception, submitted a bill to the complainant, Casimir Laskowski, for nonexistent and non-authorized advertising * * *."

The Novak complaint charged that:

"Zenon Tuczynski * * * committed the offense of attempt in that he, with intent to commit the offense of theft, billed the complaining witness, Edward E. Novak, for services not ordered * * *."

Prior to trial, defendant was informed by the court of his right to counsel and to a jury trial. He was strongly urged to retain the services of an attorney and advised that an appointment of an attorney would be made if he could not afford to retain one. Defendant, however, stated that he wished to represent himself and requested that the trial judge decide the case.

During the trial, Laskowski testified that he received a bill for $73 from defendant's Jednosc newspaper for an advertisement of his funeral home. He did not pay the bill because he had neither ordered nor authorized the advertisement. He also received from the newspaper several reminder notices that the bill had not been paid. The State introduced into evidence the December 20, 1975, edition of defendant's Jednosc newspaper containing an ad for Laskowski's funeral home — which he stated was an unauthorized reproduction of an ad ordered by him appearing in the December 19, 1975 edition of the Polish Daily Zgoda newspaper.

While he was cross-examining Laskowski, defendant requested an explanation in lay terms of the attempt theft charge. The state's attorney answered, "You attempted to acquire money falsely from false billing, knowing those billings to have been false and unauthorized — to wit — the intent to permanently deprive people of property."

Novak then testified that on March 14, 1976, he received a bill from defendant's Courier newspaper for an unauthorized advertisement for the Polish American Political League, of which he was chairman. He stated that neither he nor any other officer of the organization authorized the advertisement, but that he had placed a political ad for the League in the Zgoda newspaper on March 12 — which was the same ad appearing in defendant's Courier.

During his cross-examination of Novak, defendant inquired as to the nature of the Novak charge and the state's attorney informed him that it was attempt theft. Defendant then asked him to explain in lay terms what the difference was between the Laskowski and Novak charges. The state's attorney stated that the difference was that in the Laskowski case "we can prove where you got the ads from, that they were unauthorized and that you published it in the Jednosc newspaper." In the Novak case "the only thing we can prove is that you issued an unauthorized bill. We can't prove that you ever published an ad."

Five other witnesses, Raymond Sarnow, Reverend Edmond Siedlecki, Frank Condel, Donald Binniac, and Arthur Kilinonski testified that they had received bills from defendant's newspapers for advertisements they did not order.

Walter Kuman, an advertising department employee for the Polish Zgoda Printing and Publishing Company, testified that the Laskowski and Siedlecki advertisements appearing in the December 20, 1975, edition of defendant's newspaper were reproductions of advertisements published in the Zgoda newspaper on December 19, 1975, and he stated that defendant was not authorized to reproduce any advertisements from the Zgoda newspaper.

At the close of the State's case, defendant requested and was granted a one-week continuance to select his defense witnesses. During that week, defendant retained an attorney who was granted another continuance for one week to become acquainted with the case and to prepare a defense.

When the trial resumed, defendant testified that his wife and many of his newspaper employees accepted orders for advertisements during the period that the Laskowski and Novak advertisements were taken. He stated also that when an advertiser wanted the publication of an ad that appeared in another paper, it was his practice to reproduce the ad from the other paper. He further testified that he neither recorded the orders for the Laskowski or Novak advertisements nor did he send bills to them.

Defendant's wife testified that she was employed by the Jednosc and Courier newspapers and that in December 1975, a caller who identified himself as Casimir Laskowski ordered an advertisement for his funeral home to be placed in the December 20 edition of the newspaper. Since the advertisement he wanted had appeared in the Zgoda newspaper on December 19, she reproduced that ad in the Jednosc newspaper.

OPINION

Defendant initially contends that the two misdemeanor complaints were insufficient to charge him with the offenses of attempt theft. He argues that the complaints failed to set forth the elements of the principle offense of theft; particularly that they lacked allegations of any attempt to "obtain or exert unauthorized control" so as to "permanently deprive the owners of the use or benefit of their property" and that they did not contain an allegation as to the nature of the property that he attempted to steal.

• 1 The function of a misdemeanor complaint, like any other charging instrument, is to advise the accused of the nature of the accusation so as to enable him to fully prepare his defense (People v. Dillon (1968), 93 Ill. App.2d 151, 236 N.E.2d 411), and it must be sufficiently specific to serve as a bar to a second prosecution for the same offense (People v. Harvey (1973), 53 Ill.2d 585, 588, 294 N.E.2d 269, 270).

• 2 When the sufficiency of a complaint is attacked in a pretrial motion (Ill. Rev. Stat. 1975, ch. 38, par. 114-1) or, as here, after trial in a motion in arrest of judgment (Ill. Rev. Stat. 1975, ch. 38, par. 116-2), the standard of review is to determine whether the complaint complies with the stated requirements of section 111-3 of the Code of Criminal Procedure of 1963 for charging an offense (Ill. Rev. Stat. 1975, ch. 38, par. 111-3; see People v. Gilmore (1976), 63 Ill.2d 23, 29, 344 N.E.2d 456, 460; People v. Clutts (1976), 43 Ill. App.3d 366, 356 N.E.2d 1367).

That section requires a charge to be in writing, to state the nature of the offense, to cite the statutory provisions alleged to be violated and to set forth each of the elements of the offense charged. People v. Heard (1970), 47 Ill.2d 501, 505, 266 N.E.2d 340, 342-43.

• 3 The elements of the inchoate offense of attempt consist of an intent to commit a specific offense and an act which constitutes a substantial step toward the commission of that offense. Ill. Rev. Stat. 1975, ch. 38, par. 8-4; People v. Woodward (1973), 55 Ill.2d 134, 137-38, 302 N.E.2d 62, 63-64; People v. Richardson (1965), 32 Ill.2d 497, 502, 207 N.E.2d 453, 456; People v. Tiggs (1976), 38 Ill. App.3d 72, 347 N.E.2d 389; People v. Sanders (1972), 7 Ill. App.3d 848, 289 N.E.2d 110.

The degree of specificity required in an indictment charging an attempt was addressed generally in People v. Williams (1972), 52 Ill.2d 455, 461, 288 N.E.2d 406, 409, where defendant was charged with attempt kidnapping and the court, in holding that less particularity is required in charging the elements of an inchoate offense than a completed offense, stated:

"In an indictment for attempt, the crime intended need not be set out as fully and specifically as would be required in an indictment for the actual commission of the crime. (Baker v. State, 6 Md. App. 148, 154, 250 A.2d 677, 683; State v. Doran, 99 Me. 329, 332, 59 A. 440, 442; 4 Wharton's Criminal Law and Procedure (1957), sec. 1793.) The Supreme Judicial Court of Maine in the Doran case said: `It is ordinarily sufficient to state the intended offense generally, as by alleging an intent to steal, or commit the crime of larceny, rape, or arson.'"

In the instant case, both complaints charged an intent to commit the offense of theft by "billing" or "submitting a bill" to the complaining witnesses; in the case of Laskowski, for "non-existent and non-authorized advertising"; and, in the case of Novak, for "services not ordered." We believe that People v. Lonzo (1974), 59 Ill.2d 115, 319 N.E.2d 481, is controlling of the question as to whether those allegations were sufficient to assert that defendant took a substantial step forward towards the commission of the offense of...