Appeal from the Municipal Court of Chicago; the Hon. WALTER J.
KOWALSKI, Judge, presiding. Affirmed.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.
Rehearing denied April 20, 1965.
In a joint bench trial defendant, John Voleta, was convicted of theft and sentenced to the County Jail for one year and defendant's brother, Michael Voleta, received a suspended fine. However, only John Voleta filed an appeal.
Defendant contends that the trial court erroneously overruled the motion to suppress certain evidence, that he was not proved guilty beyond a reasonable doubt and that there was a fatal variance in the information.
Officer Mantello of the Chicago Police Department testified that he stopped Michael Voleta, between 7:00 and 8:00 p.m. on November 18, 1963, in the alley behind the tavern at 2752 West Ogden Avenue; that Michael "came out of the rear of the tavern and approached an automobile, which we knew not to be his, with a set of keys in his hand"; that Michael was not arrested at that time; that Michael accompanied them to the tavern where they questioned him as to the whereabouts of his brother, the defendant; that the following conversation with Michael took place:
He stated he [John Voleta] wasn't at home. We asked him how he knew he wasn't at home, and he said, "Well, if you don't believe me, I'll take you over there. Suit yourselves." He said, "Follow me," and took us to his home.
Officer Mantello further testified that they proceeded to an apartment at 1342 South Fairfield; that on the way to the apartment they had questioned Michael as to his brother's (defendant) occupation; that Michael replied "shoplifting"; that when they reached the apartment the officer saw a number of articles including paint brushes on a bed; that some of the paint brushes were in boxes and some exposed; that Michael stated the property on the bed was his brother's. When asked whether he knew the paint brushes were stolen, the officer testified:
Well, we saw the paint brushes numbering approximately 60, and by his own admission his brother is a shoplifter, plus recalling the paint company had been robbed.
The officer seized the paint brushes and later arrested the defendant on the charge of theft of paint brushes.
Defendant testified that he lived at the Fairfield apartment in which the brushes were found; that "I sleep on a couch. You can go there . . . and . . . see my blankets and pillows there, because the television is right in the front room." On cross-examination, defendant, when asked whether he lived in the apartment and whether it was his legal residence, answered:
"No, I have another apartment."
Michael Voleta testified that he lived at 1342 Fairfield; that there are two bedrooms; that his brother John sleeps "on the couch" when he stays there.
The evidence thus conclusively shows that Michael lived in the apartment and that he had at least equal rights to the use ...