People v. Stout

438 N.E.2d 952, 108 Ill. App. 3d 96, 63 Ill. Dec. 810, 1982 Ill. App. LEXIS 2116
CourtAppellate Court of Illinois
DecidedJuly 28, 1982
Docket81-13
StatusPublished
Cited by23 cases

This text of 438 N.E.2d 952 (People v. Stout) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Stout, 438 N.E.2d 952, 108 Ill. App. 3d 96, 63 Ill. Dec. 810, 1982 Ill. App. LEXIS 2116 (Ill. Ct. App. 1982).

Opinion

JUSTICE HOPF

delivered the opinion of the court:

Defendant was tried by a jury in McHenry County for burglary of the village of Lakemoor municipal building, theft of merchandise taken in that burglary, and forgery of two checks taken in the burglary. The jury found him guilty of the two counts of forgery, counts VIII and IX in the information, and not guilty of the other charges. He appeals his conviction for the two forgeries.

We address first defendant’s contention that he suffered double jeopardy when the trial directed the verdict in his favor on count IX and then reversed its decision, allowing trial on this count to continue and result in a guilty verdict.

After the State rested its case defendant moved for a directed verdict on all the charges. With respect to the forgeries defendant argues that the State failed to prove they were committed in McHenry County.

After hearing arguments from counsel for the defendant and the State the court stated that it would not direct the verdict on the burglary or theft counts nor on count VIII, one of the forgery charges, but it stated that with respect to count IX, the other forgery charge, the evidence showed the check was not completed in McHenry County but in Lake County. The court then stated the following:

“I am going to direct the verdict on Count Nine because the document was not completed in McHenry County.
* * *
*** [T]he Court will direct — enter a directed verdict of not guilty as to Count Nine.
If you wish to submit something, fine. That’s up to you.”

The prosecutor then asked if he could submit a motion and the court consented. Later in the day the prosecutor moved for reconsideration. The court concluded that the objection to venue was waived and stated that therefore “the directed verdict is withdrawn.” Defense counsel objected to the reconsideration on the basis that the court had already ruled. The court answered,

“Well, that’s perfectly all right. However, *** for the record the ruling has not been announced to the jury or anyone else at this time, so that would in no way affect the jury’s consideration of this matter.”

The granting of a motion to direct a verdict is an acquittal. (People v. Hutchinson (1975), 26 Ill. App. 3d 368, 325 N.E.2d 115; People v. Gallas (1966), 77 Ill. App. 2d 132, 221 N.E.2d 782.) The legal effect of a directed verdict is to bar, under double jeopardy principles, its vacation or reversal. (U.S. Const., amends. V and XIV; Ill. Const. 1970, art. I, sec. 10; Hutchinson; Gallas.) A trial court therefore may not withdraw an order directing a verdict and permit the jury to make a finding on the charge.

The State argues that the trial court here did not direct the verdict but only stated it would do so at a later time. The court indicated it would entertain further arguments on the matter and did not intend to rule until the State had presented its argument, the State contends.

The record shows, however, that the parties and the court all considered that an order directing the verdict was made.

In People v. Hutchinson and People v. Gallas, memorandum orders were entered. In the recent decision of In re L.R. (1982), 106 Ill. App. 3d 244, 435 N.E.2d 908), which also held a directed verdict may not be rescinded, the reviewing court merely stated that the trial court directed the verdict, without stating whether it was recorded in a written order, or stated orally. The State argues that the oral pronouncement by the court here was insufficient to constitute a directed verdict.

Section 115 — 4(k) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 115 — 4(k)) states that when the evidence is insufficient to support a finding of guilty, “the court may and on motion of the defendant shall make a finding or direct the jury to return a verdict of not guilty, enter a judgment of acquittal and discharge the defendant.”

Here, the trial court simply stated it was directing the verdict for defendant on count IX. It did not direct the jury to return a verdict, enter a judgment of acquittal nor discharge the defendant.

It was held in People v. Gallas, however, that a court has authority to dismiss charges without the submission of a jury instruction. “The court made the determination as a question of law and the followup by an instruction was a formality.” (77 Ill. App. 2d 132, 140.) The lack of a direction to the jury, therefore, cannot prevent the recognition of a directed verdict. The fact that defendant here was not discharged also will not keep1 the court’s order from having effect as a directed verdict, for trial was to continue on three other charges.

As for the fact that judgment of acquittal was not entered, we conclude that the validity of a court’s pronouncement of a directed verdict does not depend upon whether judgment of acquittal is entered. We conclude that the announcement that the verdict is directed for defendant is sufficient to bar further prosecution against a defendant. As the court in Gallas stated about there being no necessity to direct the jury to enter a verdict for the defendant, “[t]he court made the determination as a question of law and the followup *** was a formality.” (People v. Gallas (1966), 77 Ill. App. 2d 132, 140.) The rendition of judgment is a judicial act, “while the entry of a judgment by the clerk is a ministerial act.” (People v. Moran (1930), 342 Ill. 478, 480, 174 N.E. 532; People v. Allen (1978), 71 Ill. 2d 378, 375 N.E.2d 1283.) It was error to continue the trial with respect to count IX after the court had directed the verdict on that count in defendant’s favor.

Defendant also contends that the State failed to prove beyond a reasonable doubt that the forgery charged in count VIII was committed in McHenry County.

Defendant was charged in this count with violating section 17— 3(a)(1) of the Criminal Code of 1961:

“(a) A person commits forgery when, with intent to defraud, he knowingly:
(1) Makes or alters any document apparently capable of defrauding another in such manner that it purports to have been made by another or at another time, or with different provisions, or by authority of one who did not give such authority ***.” Ill. Rev. Stat. 1979, ch. 38, par. 17-3(a)(1).

The State thus had to prove that defendant, with intent to defraud, knowingly made a document in McHenry County capable of defrauding another so that it purported to have been made by another. Defendant argues that the State did not prove he wrote the check entirely in McHenry County.

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Cite This Page — Counsel Stack

Bluebook (online)
438 N.E.2d 952, 108 Ill. App. 3d 96, 63 Ill. Dec. 810, 1982 Ill. App. LEXIS 2116, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-stout-illappct-1982.