*1 People M. Illinois, Plaintiff-Appellee, the State John Reans, Defendant-Appellant. 73-270;
(No. 20, 1974. Third District June STOUDER, dissenting. J., *2 Ottawa, for Office, of Defender’s Geis, of State Appellate the James
appellant. the Island, People. for DeDoncker, David of State’s Rock Attorney, court: Mr. ALLOY delivered opinion JUSTICE a Defendant (following Reans from a conviction appeals John theft of trial offense in the Circuit Court of of County) Rock Island and 1(b) sections by deception of $150 excess of in violation 16— 38, pars. 16— 16—1 Criminal 1(d) 1969, Stat. ch. Rev. (Ill. Code and Proba (b) to 5 1(d)). years’ probation. He was sentenced serve 16— term was to a prison tion he sentenced and was subsequently revoked of improper from a claim 1 to 3 years. has withdrawn Defendant The parole. on revocation of probation and released actually has been convic remaining appellant’s issue only before the court whether the tion for theft by deception should be reversed. been states that should have argument
In his defendant he appeal, sec in violation charged more with appropriately deceptive practices 38, 1969, par. ch. tion of the Criminal Code Rev. Stat. 1(d) (Ill. 17— between argues 17— He differentiation 1(d)). specifically convicted, there is that for he charges charge of theft which was is involved the element of intent “to the owner permanently 1969, 38, the use 16—1 or benefit Stat. ch. (Ill. Rev. property” § He contends that such intent. (d)(1)). the State has failed to prove 1971, 25, The in this case indicates on January record of a the name account at a Rock bank in checking a Island opened that, did obtain time, and at that he made no but deposit corporation, were the time the checks prior corporation’s checks use some 27, Reans 1971, ICoehler, to whom January On when Steve printed. $300 for $10, money, asked him to a check pay owed Reans wrote to him. $10 instructed Koehler to return the balance in excess of the at Koehler then the check Defendant to cash attempted unsuccessfully bank, Koehler then went to a he stores. where two cashed due balance Reans. check was unpaid $290 returned gave funds, since no insufficient account money deposited defendant. 2-day During Reans period 25, 1971, tendered following January us ten other bad cause before checks. in the the indictment Although related written, the State presented the eleventh check which was proof of the of conduct other ten course prior checks in order to show intent on an inference of the the part of defendant.
Defendant eleventh Reans contends that at time he presented bad check he team and sponsor of a Park District basketball receive, amount of expecting on reimbursement January $900 for never ar- money some of his disbursements the team. The rived. that, said of the check Defendant of the return learning upon which he had attempt Koehler, tendered to called the cashing he bank to make restitution on February but his arrest on February thwarted that endeavor. He the drawee that he had asked testified bank if he could make a to honor enable the bank deposit which would the returned check. Feb- The bank stated that on refused. Reans also ruary the bad checks arrange loan in order to pay but he was It con- unsuccessful. is defendant’s his course of position that duct following his tender of checks, fact that he including gave the bank his real name town, any and remained in was inconsistent with intent permanently to deprive the drawee bank of the funds with which it had paid the check.
After charges had been him, filed against defendant Reans apparently commenced to make restitution with to respect some of the bad checks. At the trial he attempted to produce some evidence of his subsequent course of conduct for the purpose of countering the State’s as contention to his intent at the time he wrote the check to Koehler. The trial judge refused to admit the testimony with to respect restitution which was any after the attempted charges had been filed. Defendant Reans challenges that determination on the ground such action taken subsequently him, to the of the filing charges against of and corroborative part of a course of conduct he had commenced prior thereto. He states that while the value as evidence of acts subsequent im- might have been by the paired intervening charges, that was a question of and weight not admissibility was the jury proper to body decide it.
Defendant Reans contends that the State failed to prove beyond a reasonable doubt the existence aof requisite felonious intent. In a trial by jury, where the is the finder of fact and has to see ability and hear the hand, evidence first and, also, to witness’s de meanor, and to decide generally the. weight to be attached to any par ticular testimony or items a evidence, court of review hesitates to challenge finding of the jury. The right to believe or disbelieve the contentions of defendant Reans as to the existence of the requisite
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People Hoffman,
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We have also Reans although from the the funds names provided of his have “backers” who were to supposed either call receive, failed to he but did not Reans anticipated might backers The jury to to failure do so. testify or his explain testimony have some about reasonably believing reservations Reans under considered obviously such conditions. could have They it would such testimony testimony would be such obtain simple very be effective it. produce if Reans had attempted knowingly record,
On the it clear that Reans tendered a is an without in and itself having funds on This deposit. Likewise, ac intent. inference of existence of the requisite Rev. (Ill. cording 15—3 Criminal. Code provisions section 38, defined in such Stat. ch. par. “permanently deprive” 3), 15— estab deemed to have manner that evidence at trial could be when lished an inference that Reans intended permanently The State deposit. he tendered the check without funds on having de conduct of prior bolstered that inference course of by proving to find Reans obviously fendant Reans. The had evidence doubt such circumstances. reasonable under guilty beyond by A which is raised defendant involves refusal second issue concerning further present the trial to allow Reans judge time following criminally at restitution when he was attempts State, of this restoration restitution to precedents Under the or charged. Illi theft the offense. negative the owner after a does (Callaghan’s The Law, 15-29.) attempts vol. evidence of at restitu nois Criminal § could testimony, referred his bear on the tion which Reans to which such evidence tended to negate of the extent question of the act is not criminality intent. removed existence of People Riggins, 13 Ill .2d make restitution. an intention to N.E.2d 450. was in fact permitted that Reans from the record attempt
We note to have the banks allow him to make the to show that *4 obtain the loan. He was and that good per- the intent to possess requisite mitted that he not testify did court, in on ruling the The trial the evidence which the bank of funds. minimal, it if excluded, any, value determined probative was While requisite the existence of the intent. issue of with the respect of evidence of attempts favor the admission at resti- normally we these of fact consider or trier having jury tution the of purpose of or presence the absence determining in activities with all other facts in the that its exclusion in believe felonious intent we prosecution, defen- of record activities us, cause of the specific before cause, reversible dant to constitute prejudicial in this not sufficiently re- constitute trial court not error. The the did discretionary ruling by himself error, the fact that defendant view, versible of particularly, at had testified to his restitution. attempts improperly The final is that the court argument raised defendant evi- refused the circumstantial give second of a paragraph Instructions, dence Pattern Jury instruction form as carried in Illinois Criminal, respect which was the defense with circum- requested by stantial 3.02 evidence. instruction No. is as follows: of circumstances
“Circumstantial evidence is facts or proof rise to a inference of give reasonable other facts which tend Cir- to show the guilt or innocence of defendant. [the] [a] cumstantial with you together evidence should be considered by all other in arriving case at verdict. your not should find the [You unless the facts and guilty circumstances proved exclude reasonable of inno- every theory cence.]" Reans, the to defendant controverted issue when
According the case was was the existence of in submitted that, tent. Defendant since the argues proof of such intent must neces draw require inferences from the existence sarily of certain facts, other the evidence question with this respect cir entirely cumstantial and the portion refused instruction should have We have observed the Committee given. Note the chal accompanying instruction lenged portion which reads: “The second paragraph should be where given only proof guilty is entirely circumstantial.” nature, intent normally its must By specific proved be by the drawing from the of another proof fact, of an inference often the commission of sense, this act itself. In such intent proscribed usually is proved cir directly. With cumstantially respect to many acts, criminal clearly act for itself.” The so “speaks act clearly broadcasts the intent it performed with which was question intent either becomes it inconsequential or is so proof related to directly proof of act regarded evidence is as direct even though it technically In might case, be “circumstantial.” the instant the State was required prove existence of not only the intent but all other elements of the charged crime as It well. is incontrovertible that the State’s proof of all such elements, least, at Therefore, was direct. obviously, the proof *5 the court prop- tibe circumstantial”
by “entirely prosecution paragraph. refused to second erly requested include the record, judgment find no error in Since we reversible be affirmed. Court of Island will Circuit Rock County Affirmed.
SCOTT, P. concurs. J., STOUDER, dissenting: Mr. JUSTICE dissenting opinion my Consistent with as discussed in my Minish, I believe People May filed Ill.App.3d given should have been entire circumstantial evidence instruction no failure to do so a new trial in this case. I see reason requires in the Minish case my dissenting opinion repeating my observations to be to the basic issue of I believe them although equaHy applicable this case.
This case there is nothing iUustrates and view that supports my in- a particular nature of circumstantial evidence suggests which if is circumstantial. only struction should be all of the evidence given case the issue is the intent of Concededly, only disputed this issue defendant and the evidence relevant to such is cir- disputed tending cumstantial. This to show defendant’s is true evidence intention to the bank of its as well as permanently deprive property the defendant had no such intention. tending show Whether intent or is not is proved is circumstantial evidence by the same standard that would be if aU measured the evi- applicable circumstantial and the should so dence were have been instructed. If I instructed believe there sufficient properly evidence, although conflicting, conviction of if in such the conflicts evidence were resolved in favor of the prosecution.