¶1specially concurring:
¶2I concur in the result reached in the opinion by my learned brethren but do not agree with the reasons expressed therein.
¶3I feel that the majority has misconstrued the efficacy of section 16— 1(d) in arriving at a conclusion not urged by the defendant. The omission of the words “stolen by another” in the indictment does not create the presumption that defendant had himself stolen the property from the owner. The use of the words “… knowingly obtain control of stolen property … under such circumstances that would reasonably induce him to believe that the property was stolen … •” (emphasis added) in the indictment clearly implies that when defendant obtained control of the property in question (in any manner whatsoever), the property had already been stolen by another. That is the plain and ordinary meaning of the indictment.
¶4I believe tire majority may be confusing what can and cannot be reasonably implied from evidence introduced at trial with what may be implied from the clear phrasing of the indictment. At trial it is not enough for the prosecution to merely show that the property in question was stolen property and that the defendant was in possession of that property in order to prove the offense of theft under 16 — 1(d) (the former offense of receiving stolen property). (People v. Baxa (1972), 50 Ill.2d 111, 277 N.E.2d 876.) The defendant’s unexplained possession of stolen property soon after a theft is evidence that the defendant stole the property himself but is not evidence of defendant’s receiving stolen property knowing it to have been stolen. (See People v. Malone (1971), 1 Ill.App.3d 860, 275 N.E.2d 236, and the cases cited therein.) However, the phraseology of the indictment herein permits a reader of the indictment to find, even after only a cursory reading, the necessary elements of the offense, i.e., that the property was already stolen by another when the defendant received it.
¶5While it may be true that the addition of the words "stolen by another” would make the indictment more explicit, the addition of these words would only be grammatically redundant and mere surplusage legally.
¶6The indictment, therefore, was sufficient to charge tire defendant with an offense under 16 — 1(d)(1).
¶7After a thorough examination of the record, I do not believe that the evidence produced at trial was sufficient to find the defendant guilty beyond a reasonable doubt. For this reason I, too, would reverse the defendant’s conviction.
¶8SUPPLEMENTAL OPINION
¶9delivered the supplemental opinion of the court:
¶10We allowed the State’s petition for rehearing in which it is claimed that our opinion "seems to revert to the strict technical requirements of pleadings of a bygone day.” The rule of law, established by our legislature, is that “a charge shall … allege the commission of an offense by: s … setting forth the nature and elements of the offense charged.” (Ill. Rev. Stat. 1973, ch. 38, § 111 — 3(a)(3); see also U.S. Const, amend. VI and Ill. Const. (1970), art. I, § 8.) In considering the sufficiency of a charge, the courts have established a judicial guideline that finds a charge sufficient if it " states specifically the elements of the offense with sufficient particularity to apprise the accused of the crime charged and to enable him to prepare his defense and permit a conviction or acquittal to be pleaded in bar of a subsequent prosecution for the same offense … (People v. Grieco, 44 Ill.2d 407, 409 (1970).) The judicial guideline does not replace the legislative mandate but is instead a result of the mandate. Our opinion is a reaffirmation of the legislative mandate with due regard to the judicial guideline and it in no way alters the requirements of either.
¶11The petition further asserts that we erred by finding that the nature of the crime here is receiving stolen property. Citing People v. Marino, 44 Ill.2d 562, 576 (1970), the State claims that such crime no longer exists in Illinois. (That argument, however, is based upon semantics rather than substantive law; c.f., People v. Baxa, 50 Ill.2d 111 (1971), a more recent case involving some of the necessary elements under section 16 — 1(d) (1).) Marino did not eliminate the crime of receiving stolen property. It held that “the conduct specifically proscribed in subsection (d), often termed receiving stolen property’, is not a separate offense in Illinois. It is included within subsection (a) … Marino did not address the question of whether an indictment drawn under subsection (d) was sufficient to charge a crime under subsection (a).
¶12The State correctly sets forth that under section 16 — 1(a) the essential elements of theft are only that the defendant knowingly obtained or exerted unauthorized control over the property of the owner and that he intended to deprive the owner permanently of its use or benefit. From this basis, the State progresses to the conclusion that if the words of the indictment herein are sufficient to charge a crime under section 16 — 1(a) (1), the indictment is legally sufficient and any additional language (with reference to section 16 — 1(d) (1)) can be treated as surplusage.
¶13Comparing the language of section 16 — 1(a)(1) and the instant indictment, we find that the word “unauthorized” is missing from the latter. (In Marino, where the charge under (a) was held to include (d), the word “unauthorized” was in the indictment.) We are aware of but disagree with cases in which the actual thief has been charged with theft and the word “unauthorized” has been viewed as not so essential that its absence would render the indictment void. (People v. Geary, 8 Ill.App.3d 633, 634-35 (1972); People v. Hayes, 133 Ill.App.2d 885, 887 (1971); People v. Wade, 131 Ill.App.2d 415, 417-19 (1970).) Unless an indictment aUeges that the conduct of the one charged is “unauthorized,” a citizen, who by legal means obtains control over the property of the owner and intends to deprive the owner of its use, could be charged with theft. “Unauthorized,” therefore, becomes essential to a charge under subsection (a) in that it distinguishes the criminal circumstances under which control may be obtained or exerted from totally innocent circumstances. (See People v. Stewart, 3 Ill.App.3d 699, 701-02 (1971).) Our position is supported by the Committee Comments to section 16 — 1 which state, “Note in subsection (a) that such control must be unauthorized’.”
¶14In the instant case we believe the phrase “under such circumstances as would reasonably induce him to believe the property was stolen” is sufficient to indicate that the conduct was indeed unauthorized. The statutory reference to subsection (d) would not, of itself vitiate the indictment. People v. Adams, 113 Ill.App.2d 276, 283-84 (1969).
¶15By the use of the surplusage rule it can be said that there remains sufficient verbiage in the instant indictment to sustain a charge under subsection (a), but this does not alter the fact that defendant was not charged under that section. There are significant distinctions between the nature and elements of subsections (a) and (d). Under (a), the State is not required to plead or prove that a person other than defendant had stolen the property or that defendant knew at the time he received the property that it had been stolen. By definition, tire charge under subsection (a) is a continuing offense. (See sections 15 — 7 and 15 — 8 of the Criminal Code, Ill. Rev. Stat. 1971, ch. 38, § 15 — 7 and § 15 — 8.) Consequently, a party who innocently comes into possession of stolen property and later Ieams that it was stolen, but, upon learning, continues possession, can be charged under subsection (a). Under (d), the State must plead and prove that the property was stolen by another and that at the time defendant received the property he knew or reasonably should have known that the property was stolen.
¶16The record in the instant case reveals that both the State and defendant proceeded throughout the trial on the basis that the crime charged was section 16 — 1(d), receiving stolen property. In reliance on the verbiage of the indictment, defendant’s primary defense was that at the time he received the property he did not know nor were the circumstances such that he should have known that the property had been stolen by another. Closing arguments by both par-ties and instructions to the jury all dealt with the crime of receiving stolen property as charged under subsection (d). Defendant had no notice or reason to prepare a defense against a charge under subsection (a).
¶17 Having elected to indict and prosecute defendant under subsection (d), basic justice requires that the State be bound to plead and prove the elements of that charge. We adhere to the majority opinion which found the indictment fatally defective for failing to include an element essential under section 16 — 1(d): i.e., that the property had been stolen by a person other than the one charged.
¶18SEIDENFELD, J., concurs.
¶19GUILD, P. J., adheres to his special concurrence.