theft instruction in Illinois

2018The court stated: “ ‘[T]he information alleged that defendant knowingly entered the premises of another without authorization and with the specific intent to commit a theft inside’ and ‘the State’s evidence established the crime of theft in that it proved what it alleged in its information: that defendant “exert[ed] unauthorized control over the property of its owner,” [citation] namely, the coins and currency owned by DollarBuster, Inc.; and, by his admission that he put the money in his pockets, the evidence showed that he concealed it with knowledge that he would probably permanently depriv

2017The court stated: " '[T]he information alleged that defendant knowingly entered the premises of another without authorization and with the specific intent to commit a theft inside' and 'the State's evidence established the crime of theft in that it proved what it alleged in its information: that defendant "exert[ed] unauthorized control over the property of its owner," [citation] namely, the coins and currency owned by DollarBuster, Inc.; and by his admission that he put the money in his pockets, the evidence showed that he concealed it with knowledge that he would probably permanently deprive

2018The court stated: “ ‘[T]he information alleged that defendant knowingly entered the premises of another without authorization and with the specific intent to commit a theft inside’ and ‘the State’s evidence established the crime of theft in that it proved what it alleged in its information: that defendant “exert[ed] unauthorized control over the property of its owner,” [citation] namely, the coins and currency owned by DollarBuster, Inc.; and, by his admission that he put the money in his pockets, the evidence showed that he concealed it with knowledge that he would probably permanently depriv

2008The defendant argued that Schmidt was wrongly decided because the supreme court did not utilize the charging instrument approach adopted in People v. Novak, 163 Ill. 2d 93 , 643 N.E.2d 762 (1994).

2018Id. ¶ 29 Thus, contrary to the analysis in Chandler, the issue here is not whether the lesser offense is “separate”; the issue is whether the indictment set out the outline of the lesser offense such -7- that the lesser offense is “included.” Because theft was “included” here, and because there was evidence that would have supported a conviction of theft and an acquittal of burglary, the trial court erred in refusing a theft instruction. ¶ 30 We note that the State asserts that the trial court’s refusal to issue the lesser-included-offense instruction, even if error, was harmless.

2017Id. ¶ 29 Thus, contrary to the analysis in Chandler , the issue here is not whether the lesser offense is "separate"; the issue is whether the indictment set out the outline of the lesser offense such that the lesser offense is "included." Because theft was "included" here, and because there was evidence that would have supported a conviction of theft and an acquittal of burglary, *950 the trial court erred in refusing a theft instruction. ¶ 30 We note that the State asserts that the trial court's refusal to issue the lesser-included-offense instruction, even if error, was harmless.

2018Yet the court held that the evidence of theft did not warrant a theft instruction because the alleged theft was “actually a separate crime committed after the greater offense was completed.” Id. at 217 .

2018(Defendant told the police that he was given the brass and copper fittings by a friend, and he argued at trial that he came upon the proceeds of the burglary by happenstance and decided to keep them.) The State maintains that, if the jury accepted defendant’s version of events, a theft instruction “would be directed at a separate offense committed at a separate time” and thus would not be appropriate. ¶ 25 In support of its “separate offense” argument, the State relies on People v. Chandler, 278 Ill.

2015In Taylor, the supreme court stated that trial judges should be empowered to sua sponte instruct juries on lesser-included offenses because "one whose conduct is unlawful should not escape punishment altogether because a jury does not believe that he is guilty of the greater offense." Taylor, 36 Ill. 2d at 491 .

2015In Taylor, the supreme court stated that trial judges should be empowered to sua sponte instruct juries on lesser-included offenses because “one whose conduct is unlawful should not escape punishment altogether because a jury does not believe that he is guilty of the greater offense.” Taylor, 36 Ill. 2d at 491 .

1992(People v. McCarty (1983), 94 Ill. 2d 28 , 445 N.E.2d 298 .) Theft requires only an intended, unauthorized deprivation of property, while robbery requires the use of force, regardless of intent. [Citation.] Since theft is not a lessor [sic] included offense of armed robbery, a defendant charged with armed robbery is not entitled to a theft instruction.” Trotter, 178 Ill.

1992(People v. McCarty (1983), 94 Ill. 2d 28 , 445 N.E.2d 298 .) Theft requires only an intended, unauthorized deprivation of property, while robbery requires the use of force, regardless of intent. [Citation.] Since theft is not a lessor [sic] included offense of armed robbery, a defendant charged with armed robbery is not entitled to a theft instruction.” Trotter, 178 Ill.

2017The court explained that *477 *987 "theft is a simple deprivation of property; robbery is a deprivation of property, plus force or the threat of force; and armed robbery is the deprivation of property, plus force or the threat of force, plus the use of a dangerous weapon." Id. at 249 , 313 Ill.Dec. 916 , 873 N.E.2d 540 (citing 720 ILCS 5/16-1(a)(1), 18-1(a), 18-2(a) (West 2002)).

2017The court explained that *477 *987 "theft is a simple deprivation of property; robbery is a deprivation of property, plus force or the threat of force; and armed robbery is the deprivation of property, plus force or the threat of force, plus the use of a dangerous weapon." Id. at 249 , 313 Ill.Dec. 916 , 873 N.E.2d 540 (citing 720 ILCS 5/16-1(a)(1), 18-1(a), 18-2(a) (West 2002)).

2014Based upon the record before us, a jury instruction on the noncharged lesser-included offense of theft would have been inappropriate, and the trial court did not err in refusing to give a theft instruction. ¶ 34 For the foregoing reasons, we affirm the judgment of the circuit court of Madison County. ¶ 35 Affirmed. 12 2014 IL App (5th) 120216 NO. 5-12-0216 IN THE APPELLATE COURT OF ILLINOIS FIFTH DISTRICT THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Madison County. ) v. ) No. 11-CF-541 ) RAY TERRANCE SLACK, ) Honorable ) Ann Callis, Defendant-

2003Hamilton, 179 Ill. 2d at 328 , 688 N.E.2d at 1171 .

2003Hamilton, 179 Ill. 2d at 328 , 688 N.E.2d at 1171 .

1992Further, “ ‘where an indictment contains several counts arising out of a single transaction and a general verdict is returned, the effect is that the defendant is guilty as charged in each count.’ ” (People v. Thompkins (1988), 121 Ill. 2d 401, 455-56 , 521 N.E.2d 38, 62 , quoting People v. Lymore (1962), 25 Ill. 2d 305, 308 , 185 N.E.2d 158, 159 .) Defendant suffered no prejudice as a result of the trial court’s failure to give the theft instruction.

1992Further, “ ‘where an indictment contains several counts arising out of a single transaction and a general verdict is returned, the effect is that the defendant is guilty as charged in each count.’ ” (People v. Thompkins (1988), 121 Ill. 2d 401, 455-56 , 521 N.E.2d 38, 62 , quoting People v. Lymore (1962), 25 Ill. 2d 305, 308 , 185 N.E.2d 158, 159 .) Defendant suffered no prejudice as a result of the trial court’s failure to give the theft instruction.

1992Further, “ ‘where an indictment contains several counts arising out of a single transaction and a general verdict is returned, the effect is that the defendant is guilty as charged in each count.’ ” (People v. Thompkins (1988), 121 Ill. 2d 401, 455-56 , 521 N.E.2d 38, 62 , quoting People v. Lymore (1962), 25 Ill. 2d 305, 308 , 185 N.E.2d 158, 159 .) Defendant suffered no prejudice as a result of the trial court’s failure to give the theft instruction.

1992Further, “ ‘where an indictment contains several counts arising out of a single transaction and a general verdict is returned, the effect is that the defendant is guilty as charged in each count.’ ” (People v. Thompkins (1988), 121 Ill. 2d 401, 455-56 , 521 N.E.2d 38, 62 , quoting People v. Lymore (1962), 25 Ill. 2d 305, 308 , 185 N.E.2d 158, 159 .) Defendant suffered no prejudice as a result of the trial court’s failure to give the theft instruction.

1992(People v. Lewis (1976), 37 Ill.

1992However, in People v. Schmidt (1989), 126 Ill. 2d 179 , 533 N.E.2d 898 , the supreme court vacated a theft conviction where defendant had been indicted on burglary and defendant had requested the theft instruction.

1992However, in People v. Schmidt (1989), 126 Ill. 2d 179 , 533 N.E.2d 898 , the supreme court vacated a theft conviction where defendant had been indicted on burglary and defendant had requested the theft instruction.

1992(People v. McCarty (1983), 94 Ill. 2d 28 , 445 N.E.2d 298 .) Theft requires only an intended, unauthorized deprivation of property, while robbery requires the use of force, regardless of intent. [Citation.] Since theft is not a lessor [sic] included offense of armed robbery, a defendant charged with armed robbery is not entitled to a theft instruction.” Trotter, 178 Ill.

1992App. 3d at 299 . “[W]here some of the elements of the crime charged themselves constitute a lesser crime, the defendant, if the evidence justifies it, is entitled to an instruction which would permit a finding of guilt of the lesser offense.” (People v. Sanders (1988), 168 Ill.

1992App. 3d 22 , 529 N.E.2d 657 ), and there is no evidence in the present case to support the giving of a theft instruction.

1990The appellate court in Schmidt concluded that the rationale for requiring the theft instruction “is based on the case law holding an accused is entitled to instructions on his theory of the case, and a refusal to give such instruction is error.” Schmidt, 161 Ill.

1990The appellate court in Schmidt concluded that the rationale for requiring the theft instruction “is based on the case law holding an accused is entitled to instructions on his theory of the case, and a refusal to give such instruction is error.” Schmidt, 161 Ill.

1989In holding that “the People’s instruction clearly denied defendant his right to due process” ( 134 Ill.

1989In holding that "the People's instruction clearly denied defendant his right to due process" ( 134 Ill.

1988(People v. Gibson (1985), 137 Ill.

1987(People v. Harris (1976), 39 Ill.

1987Because of the absence of an included offense and the rejection of the "inherent relationship" doctrine, we come to the conclusion the justification for requiring the theft instruction is based on the case law holding an accused is entitled to instructions on his theory of the case, and a refusal to give such instruction is error. ( People v. Harris (1976), 39 Ill.

1987App.3d 805 , 350 N.E.2d 850 ; People v. Dortch (1974), 20 Ill.

1985A In People v. Reppa (1982), 104 Ill.

1985App. 3d 682 , 391 N.E.2d 91 , this court held that since theft is not a lesser included offense of armed robbery, a defendant charged with armed robbery is not entitled to a theft instruction.

1985B Defendants note a split of authority, holding in some cases that theft is a lesser included offense of armed robbery, citing, inter alia, People v. Williams (1976), 42 Ill.