WRIT OF ERROR to the Circuit Court of Kendall County; the Hon.
CHARLES G. SEIDEL, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
After a jury found the defendant guilty of burglary, the circuit court of Kendall County sentenced him to the penitentiary for a term of not less than three nor more than eight years. On this appeal his principal contention is that a confession which he made to the sheriff of Kendall County ten days after his preliminary hearing before a magistrate was erroneously admitted in evidence. He also contends that the trial court's instructions concerning the criminal liability of an accessory were not warranted by the evidence, that the State's Attorney made prejudicial remarks during his closing argument, and that the verdict is not supported by the evidence.
The undisputed testimony at the defendant's trial showed that at about 1:50 in the morning of March 26, 1962, an officer of the Yorkville Police Department noticed that a pane of glass had been broken in the door of the Southtown Texaco Service Station in Yorkville. The door handle had been turned to an open position, and the officer heard the scuffling of feet inside. The sheriff of Kendall County responded to the officer's radio call and the two officers entered the service station, where they discovered that the cash register drawer had been pulled out and that a desk in the office had been opened. The sheriff telephoned the manager of the service station who joined the officers. A cigar box containing one $20 bill, one $10 bill, and two $1 bills was missing from the desk in the office. Some books of green stamps were also missing from the desk, and some pennies were gone from the open cash register. The officers continued to search the station, and the sheriff discovered a man hiding underneath a piece of cardboard behind a water heater. With him were ten books of green stamps. The man, who identified himself as Eugene Stark, was arrested and taken to the county jail.
After the arrest of Eugene Stark, the two officers and the chief of police of Yorkville began a search for a light green 1953 Chevrolet. A friend of Eugene Stark testified at the defendant's trial that he had loaned such a car to Eugene Stark for the weekend. At approximately 2:30 A.M. the officers discovered and stopped an automobile meeting the description of the one they were seeking. It was driven by the defendant, Kenneth Stark, who said he was looking for his brother, Eugene. The defendant was arrested and taken to the county jail. He had in his possession one $20 bill, one $10 bill, two $1 bills, and 99 cents in pennies.
The transcript of a preliminary hearing on the defendant's motion to suppress his confession is not included in the record. This omission was noted during the oral argument of this case, and the State's Attorney was requested to file the transcript within ten days. After the expiration of this period, the State's Attorney reported that he could not do so because of the court reporter's inability to locate her notes.
The defendant did not testify at the trial, but the sheriff testified as to the defendant's custody and confession. He said that when the defendant was arrested, he asked to call an attorney. The sheriff replied, "Attorneys don't like to be called at two-thirty in the morning," but the defendant was informed that he could make his phone call later. On the same day the defendant was brought before a magistrate and bound over to the grand jury. For ten days thereafter, he was incarcerated on the second floor of the county jail. He was the only prisoner on the second floor. The sheriff explained that Eugene Stark was being held on the first floor and that it was the sheriff's practice to separate prisoners involved in the same crime. On cross-examination, the sheriff testified that he had never interrogated the defendant. The defendant's attorney asked:
A: We had many discussions.
Q: What would you call discussions?
A: On the morning of the 5th, in the jail, I asked him if he wanted to tell me what took place. On the morning of the 26th, when I served him breakfast, I asked him if he would cooperate with me.
Q: Did you question the defendant at any time other than the ...