561 N.E.2d 165 (Ill. 1990)
Ben D. Brown, Inc. contracted with the City of East St. Louis to perform services connected with the East St. Louis Riverfront Project.1 One service was to conduct a survey of city residents concerning the project.2 Brown was to be reimbursed for the services by the trustee of a bond issue financing the Riverfront Project.3 Brown's employees were hired through the East St. Louis First program, which provided job training to economically disadvantaged persons.4 The twelve individuals named in the indictments were hourly wage employees of Brown who worked a regular schedule.5
Defendant Kelvin Ellis was an appointed official in the City of East St. Louis and assistant to the mayor.6 The twelve employees came to city hall each day and received instructions on their daily assignments from Ellis and Davis.7 Davis and Ellis asked the employees to participate in political activities such as campaigning and collecting absentee ballots to benefit the mayor of East St. Louis and Davis, both of whom were candidates in an upcoming election.8
After testimony before the St. Clair County grand jury, Davis was indicted for twelve counts of theft.9 Ellis was indicted for twelve counts of theft, twelve counts of official misconduct under section 33-3(b) of the Criminal Code of 1961, and twelve counts of official misconduct under section 33-3(c) of the Criminal Code of 1961.10 After discovery was completed, each defendant filed a motion to dismiss.11 The motions claimed that the indictments did not charge an offense of theft because the labor of a person cannot be the property of his employer.12
The circuit court of St. Clair County found in its orders of dismissal that the State's factual allegations against each of the defendants were that Ben D. Brown, Inc. contracted with the City of East St. Louis to perform services and hired the individuals named in the indictment.13 Those individuals would gather at East St. Louis City Hall each morning to be instructed as to what tasks they should perform that day.14 Defendant as assistant to the mayor would instruct the individuals as to what tasks he wished them to perform.15 Defendant knew that the individuals were employed by Ben D. Brown, Inc. to perform services for the city.16 Despite this knowledge, defendant instructed or requested that these individuals perform tasks other than that for which they were hired by enticing them with promises of jobs or other rewards.17 The defendant did so with the intention of depriving Ben D. Brown, Inc. of the services and/or labor of the individuals in its employ.18 The defendant is charged with the offense of theft in violation of subsection 16-1(a)(1) and based thereon official misconduct.19 The court ruled that the indictments failed to state an offense for theft of property under section 16-1(a)(1) of the Criminal Code of 1961.20 This was because the anticipated labor of an employee is not the property of his employer as the term property is defined within said section of the Code.21 The People of the State of Illinois took this interlocutory appeal from the dismissal of the indictments by the St. Clair County circuit court.22
Whether the anticipated labor of an employee constitutes property of his employer such that diversion by a third party of the employee from his duty constitutes theft under section 16-1(a)(1) of the Criminal Code of 1961?23
Section 16-1(a)(1) of the Criminal Code of 1961 provides that a person commits theft when he knowingly obtains or exerts unauthorized control over property of the owner.24 Property is defined in section 15-1 as anything of value, with a list of specific items including labor or services.25 However, to be property under the statute, it must be capable of being taken away by someone other than the owner, detectable or measurable by the senses or mechanical means, or movable.26
No. The value of an employee's anticipated labor does not possess characteristics of property as defined in section 15-1 for the reasons stated in Zakarian.27 The anticipated labor cannot be taken and carried away, transported from place to place or moved, and could not be detected by the senses or measured by mechanical means.28 In the present case, the defendants diverted the twelve hourly wage employees of Ben D. Brown, Inc. from their survey work for the Riverfront Project to political activities benefiting the mayor and Davis.29
Although the employees were paid by Brown, the labor itself does not qualify as property that can be stolen under the theft statute.30 The court noted that section 16-3 addresses theft of labor or services but does not cover this diversion of services.31
The indictments failed to state an offense for theft of property under section 16-1(a)(1) of the Criminal Code of 1961. The anticipated labor of an employee is not the property of his employer as the term is defined in the statute.32
Whether indictments for official misconduct against a public officer are sufficient when predicated on theft charges that fail to state an offense?33
Sections 33-3(b) and 33-3(c) of the Criminal Code of 1961 require that in the performance of the official's duty the defendant violated an identifiable civil or criminal statute, rule, regulation, tenet or any other duty imposed by law.34 Therefore, sufficiency of the counts of official misconduct are dependent on sufficiency of the predicate offenses.35
No. The sufficiency of the counts of official misconduct against Ellis are dependent on sufficiency of the predicate offenses, the theft of property counts, and the State has so stipulated. Because the theft charges do not state an offense under section 16-1(a)(1), the official misconduct indictments predicated on those theft charges are also insufficient to state an offense.36
The indictments for official misconduct against Ellis are insufficient because they are predicated on theft charges that fail to state an offense.37