Appeal from the Circuit Court for the Sixteenth Judicial
Circuit, Kane County; the Hon. JOHN S. PAGE, Judge, presiding.
MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT.
Defendant, Charles Zaeske, Billy Alston and Julian Alston were indicted in Kane County for theft of a Chevrolet automobile from Ross Rambler, an auto sales lot in Elgin, Illinois. Both Alstons pleaded guilty and applied for probation. Zaeske was tried as an accessory before the fact and was found guilty by a jury.
He appeals charging that the unsupported testimony of the Alstons was insufficient to sustain a guilty verdict, that defendant was not proved guilty beyond a reasonable doubt and that prejudicial error occurred during the trial.
A proper consideration of defendant's arguments requires a review of the evidence offered. It appears that the prosecution called eleven witnesses. The defense called defendant, his wife and five character witnesses.
For the People, Billy Alston testified that Zaeske, who ran a used car lot and garage, hired him as a body and fender man at $60 per week. About two weeks before the car theft, Zaeske said something about going to a used car lot and making a key. On the day of the theft, a Saturday, Zaeske told Billy and his father, Julian Alston, that he would get a car at Ross Rambler, have a key made and return the car for Billy to steal that night. Later that day Billy saw Zaeske give the elder Alston a key. He identified People's Exhibit No. 1 as the key given by Zaeske to his father. He testified Zaeske told him to take the car to Alabama and sell it. The proceeds were to be divided three ways. In addition, the Alstons were to take a 1949 dump truck belonging to Zaeske to Alabama and sell it. Billy then took his father to the hotel and went to his own home in the dump truck. About 8:30 or 9:00 o'clock that night, he drove the dump truck to Route 58 and Barrington Road where he was to meet his father, who would be driving the stolen Chevrolet automobile. When he stopped at the intersection, the truck was struck in the rear by an automobile which turned out to be the stolen Chevrolet driven by his father. They left the stolen and now damaged vehicle at the intersection and returned to defendant's garage in the truck. Ten minutes after their arrival defendant Zaeske came to the garage. Billy told him about the collision and Zaeske gave him $10 for bandages for the elder Alston's injured chin.
On cross-examination Billy testified he could tell a Ford key from a Chevie key, but could not otherwise identify the key. He said he could wire around or jump an ignition so a car would start without a key. At the time of the collision he had title papers to the dump truck, but these papers were not signed by defendant Zaeske.
Julian Alston testified that on the day of the theft, Zaeske gave him the key and told him to go to Ross Rambler, steal the Chevrolet, take it to Alabama and sell it. Billy drove him to the Lee Hotel where he stayed until about 8:45 p.m. He then left and walked to Ross Rambler. He took the Chevrolet, using the key Zaeske had given him, drove to Route 58 where he met Billy and was following him when the accident occurred. They returned to the garage in the dump truck but he did not talk to Zaeske. On cross-examination Julian Alston acknowledged he had previously been convicted of murder and had served time in Alabama. He was then on parole. He had experience with parole and probation and knew that one of the chief considerations is the recommendation and attitude of the State's Attorney. He testified Zaeske gave him the key or he got it from the desk. He had no title papers for the Chevrolet.
Witness Ralph Steleaskey worked at Ross Rambler. He testified that at about 10:30 a.m. to 11:00 a.m. on the day of the theft, Zaeske came to borrow a 1960 Chevrolet to show to a customer. Zaeske returned the car about 12:30 p.m. or 1:00 p.m., and the next time the witness saw the car was after the theft and the accident.
Gerhardt Moosman is a locksmith. He testified that about 11:00 a.m. to 11:15 a.m. on the day in question, Zaeske came in to have a key made for a car which he said had just been sold. He made a key which he identified as Exhibit No. 1. He gave the key to Zaeske and was paid for his work. He testified that a person not skilled as a locksmith could not recognize a particular key simply from handling it.
Clark Houghtby testified he saw Zaeske having the key made by Moosman. Zaeske said he was getting the key for a party that was going to buy a car.
State Police Trooper John J. Jeskula testified to investigating the accident scene and finding a key similar to Exhibit No. 1.
Herbert Horn, sales manager at Ross Rambler, testified his organization had to establish ownership of the Chevrolet to obtain it from the police. The car had a brand new ignition key similar to People's Exhibit No. 1.
Police Officer Thomas Stegle testified that nine days after the theft he spoke to Zaeske and Zaeske said he borrowed the Chevrolet to show to a prospective customer whose name he could not recall. Stegle looked at the dump truck. The cab was painted red and the body black. Zaeske told him there was universal trouble with it and it would not have been in running condition. Nothing was said about the truck having been stolen. Later that day Stegle talked to Zaeske at the Elgin Police Station and Zaeske denied having the key made. Zaeske told him Billy Alston had stolen the Chevrolet and that Alston was then out on the road in one of Zaeske's car. Stegle went outside to Zaeske's car and found Alston and had him brought into the station. Zaeske then charged Billy with stealing the truck. Alston said Zaeske borrowed the car from Ross Rambler, had the key made, gave the key to Billy's father and told him to steal the car and take it to Alabama with Billy following in the dump truck.
For the defense, Eva Zaeske, defendant's wife, testified that on the evening in question her husband did not leave his home ...