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    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GARY L. GRAY, Defendant-Appellant."
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    "opinions": [
      {
        "text": "Mr. JUSTICE REARDON\ndelivered the opinion of the court:\nFollowing a bench trial in Sangamon County, defendant was convicted of theft of a .32-caliber revolver, a violation of section 16 \u2014 1 of the Criminal Code of 1961. (Ill. Rev. Stat. 1975, ch. 38, par. 16 \u2014 1.) Defendant appeals his conviction alleging: (1) that his guilt was not proved beyond a reasonable doubt; and (2) that the court abused its discretion by denying defendant\u2019s motion for a continuance on the day of trial.\nThe evidence presented at trial reflects that a .32-caliber revolver was stolen from the glove compartment of a security guard\u2019s automobile near the Armory in Springfield on April 15, 1977. When the guard discovered the theft, he immediately notified the police who informed him that they were in possession of the weapon.\nPrior to the guard\u2019s discovery of his loss, a passerby observed three men looking in parked cars near the Armory. The passerby immediately notified the police. When a patrol car reached the scene, officers in the car pulled next to three suspicious-looking men who fled on foot. The passerby and police chased the three men, including the defendant whom they soon took into custody. Although the passerby did not observe defendant holding a weapon during the chase, one of the officers observed defendant pull a white-handled gun from his sleeve. At that time, the defendant was running through a parking lot and appeared to make a single sweeping motion with his left hand. After defendant\u2019s apprehension, another passerby advised the officers that a gun was lying on the ground in the parking lot. When picked up by the police, the gun was lying in its holster approximately 20 to 30 feet from the spot where defendant made the sweeping motion with his arm. The gun was later identified as the one taken from the security guard\u2019s vehicle.\nAt trial, defendant claimed that he and an acquaintance had been solicited in an alley by an unknown third person who desired to sell them some stereo equipment and the revolver. When the police arrived, defendant ran because one of the officers started to pull his own revolver. Defendant denied holding the weapon when the officers arrived and he denied having thrown the gun into the parking lot.\nThe information charging defendant with the instant crime was filed on May 12, 1977, and states that defendant \u201c* * \u00b0 committed the offense of THEFT OF A FIREARM in that said defendant knowingly obtained unauthorized control over certain property of Forest Prather, being a .32 caliber automatic Armi Galesi Bere Scia, Brevitta caliber pistol, with the intent to deprive Forest Prather permanently of the use and benefit of said property, in violation of the Criminal Code of 1961, as amended, Section 16 \u2014 ldl, and against the peace and dignity of the same people of Illinois.\u201d Section 16 \u2014 1(a) and (d) (1) of the Code provide: \u201cA person commits theft when he knowingly: (a) Obtains or exerts unauthorized control over property of the owner; or\u201d \u201d * (d) Obtains control over stolen property knowing the property to have been stolen by another or under such circumstances as would reasonably induce him to believe that the property was stolen, and (1) Intends to deprive the owner permanently of the use or benefit of the property; * # Ill. Rev. Stat. 1975, ch. 38, par. 16 \u2014 1(a), (d)(1).\nIn People v. Marino (1970), 44 Ill. 2d 562, 576, 256 N.E.2d 770, 778, our supreme court held that the conduct proscribed in section 16 \u2014 1(a) and (d) (1) does not involve separate offenses. Rather, any distinction between the conduct proscribed by the statute is of a historical nature. (LaFave & Scott, Criminal Law \u00a791, at 673 (1972).) One charged with a violation of section 16 \u2014 1(a) may, therefore, be convicted of theft even if he did not originally take the item from its lawful owner; to wit: \u201cThe conduct specifically proscribed in subsection (d), often termed \u2018receiving stolen property\u2019, is not a separate offense in Illinois. It is included, within subsection (a), which describes as an offender, \u2018A person [who] knowingly: (a) Obtains or exerts unauthorized control over property of the owner.\u2019 (Emphasis supplied.) Thus, as reasoned by the appellate court in People v. Nunn, 63 Ill. App. 2d 465, at 470, \u2018section 16 \u2014 1(a) is not limited to the theft of property in which only the actor who initiates the wrongful asportation is guilty of the offense.\u2019 (See S.H.A. ch. 38, \u00a716 \u2014 1, Committee Comments; People v. McCormick, 92 Ill. App. 2d 6, 11-13.)\u201d 44 Ill. 2d 562, 576, 256 N.E.2d 770, 778; cf. People v. Dziak (1975), 30 Ill. App. 3d 859, 333 N.E.2d 582 (abstract).\nWe recognize that an indictment or information must set forth the statutory provision alleged to be violated and the nature and elements of the offense charged (U.S. Const., amend. VI; Ill. Const. 1970, art. I, \u00a78; section 111 \u2014 3(a)(2), (3) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. Ill \u2014 3(a)(2), (3))), that only formal defects in the charging instrument may be amended \u201cat any time\u201d (section 111 \u2014 5 of the Code (Ill. Rev. Stat. 1975, ch. 38, par. Ill \u2014 5); People v. Heard (1970), 47 Ill. 2d 501, 504-05, 266 N.E.2d 340, 343; People v. Troutt (1977), 51 Ill. App. 3d 656, 660, 366 N.E.2d 370, 373), and that the defendant is not under a mandatory duty to request a bill of particulars to clarify a vague charge (People v. Allen (1972), 8 Ill. App. 3d 176, 178, 289 N.E.2d 467, 468; section 111 \u2014 6 of the Code (Ill. Rev. Stat.'1975, ch. 38, par. Ill \u2014 6)). Our understanding of Marino, however, causes us to conclude that the indictment in the instant case sufficiently charges the crime of theft, a wrongful taking, and is not void even though the nature and elements described in the charge correspond to section 16 \u2014 1(a) while citing section 16 \u2014 1(d)(1). In fact, a miscitation of the statutory provision alleged to have been violated does not render the charging instrument void unless defendant is prejudiced by the error. (People v. Dismore (1975), 33 Ill. App. 3d 495, 498, 342 N.E.2d 151.) Here, since the defendant had adequate notice of the charge against him and was able to present a defense thereto, we find that he was not prejudiced by the miscitation.\nSince defendant was charged with and convicted of a wrongful taking, we also find that the evidence adduced at trial does indeed establish his guilt beyond a reasonable doubt. A suspect\u2019s recent, exclusive, and unexplained possession of stolen goods is evidence of the suspect\u2019s guilt of the wrongful taking, but is not evidence of guilt of receipt of stolen property. E.g., People v. Watts (1977), 55 Ill. App. 3d 66, 68, 370 N.E.2d 583, 584.\nA trial court\u2019s refusal to grant a motion for continuance will ordinarily not be reversed on appeal without a clear showing that the court has somehow abused its discretion. (People v. Hayes (1972), 52 Ill. 2d 170, 175, 287 N.E.2d 465, 467-68; People v. Brooks (1976), 39 Ill. App. 3d 983, 986, 350 N.E.2d 821, 823.) The granting of a continuance to permit counsel\u2019s preparation for trial necessarily depends upon the particular facts and circumstances surrounding the request. (People v. Surgeon (1958), 15 Ill. 2d 236, 154 N.E.2d 253; People v. Clark (1956), 9 Ill. 2d 46, 137 N.E.2d 54.) A conviction will be reversed when there is a clear showing that the refusal to grant a continuance embarrassed the defendant, impeded the preparation of his defense, or prejudiced his rights. People v. Solomon (1962), 24 Ill. 2d 586, 589-90, 182 N.E.2d 736, 738; People v. Clayborne (1977), 47 Ill. App. 3d 202, 204-05, 361 N.E.2d 1141.\nIn the instant case, defense counsel moved for a continuance moments before the trial began in order to secure the presence of the man who was with defendant on the evening of his arrest \u2014 a man described in the record only as a Mr. Mort. Counsel had recently returned from vacation, had not interviewed the absent witness, but, based on counsel\u2019s conversations with the defendant, counsel felt the witness was a material part of his case. This conclusion, however, is belied by the fact that Mort had not been subpoenaed to appear as a witness. Other than defense counsel\u2019s conclusory statement that Mort was a material element in defendant\u2019s case, there is nothing in the record which indicates that Mort\u2019s testimony would have been useful to the defendant. Accordingly, we find that the court did not abuse its discretion in denying defendant\u2019s motion for a continuance and that defendant was not prejudiced by the denial of that motion.\nThe movant\u2019s diligence is also relevant to the granting or denial of a motion for continuance. (Section 114 \u2014 4(e) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 114 \u2014 4(e)); People v. Miller (1975), 27 Ill. App. 3d 201, 203, 327 N.E.2d 251, 252; People v. Christ (1975), 32 Ill. App. 3d 1014, 1015, 337 N.E.2d 53, 55.) In the instant case, no showing of diligence has been made.\nFor the foregoing reasons, we affirm defendant\u2019s conviction for theft.\nAffirmed.\nGREEN, P. J., and CRAVEN, J., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE REARDON"
      }
    ],
    "attorneys": [
      "Richard J. Wilson and Donald T. McDougall, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.",
      "C. Joseph Cavanagh, State\u2019s Attorney, of Springfield (Robert C. Perry and Robert J. Biderman, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GARY L. GRAY, Defendant-Appellant.\nFourth District\nNo. 14643\nOpinion filed June 23, 1978.\nRichard J. Wilson and Donald T. McDougall, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nC. Joseph Cavanagh, State\u2019s Attorney, of Springfield (Robert C. Perry and Robert J. Biderman, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People."
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  "file_name": "0243-01",
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