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People v. Sauber

MARCH 14, 1966.




Appeal from the Circuit Court for the 16th Judicial Circuit, Kendall County; the Hon. ROBERT J. SEARS, Judge, presiding. Judgment affirmed.

MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT. We granted the Petition For Leave to Appeal of defendant-appellant, wherein he sought to reverse the judgment of the Circuit Court of the 16th Judicial Circuit, Kendall County, entered upon the jury verdict finding him guilty of the crime of burglary. The defendant was sentenced by the court to serve not less than three nor more than five years in the penitentiary.

The defendant urges that the judgment be reversed because the court erred in certain evidentiary rulings and in denying his motion for a continuance; that defendant was denied his constitutional right to a fair trial by the denial of his motion for continuance and by the incompetency of his counsel due to ill health; and that the proof submitted was not sufficient to sustain the verdict of the jury.

Ten witnesses testified on behalf of the People on direct examination and one in rebuttal: one witness testified on behalf of the defendant. Donald K. Espeland, his wife, 16 year old son, and daughter, came to a tavern known as the "Shamrock" about 6:00 a.m., on February 16, 1964. Espeland was employed to clean the tavern on Sunday morning of each week. Snow had fallen the night before and it was not yet light when he parked his car at the east rear of the tavern, prior to entering the front door on its west side.

Upon opening the door, he saw two men in the tavern, who later ran out the back door. Espeland closed the door and something struck it, breaking the glass portion thereof. He called to his son to catch one of the men. His son pursued and ultimately caught the man — who was later identified as Fred Larsen.

The other man escaped in a white compact car parked 60 to 70 feet south of the Corral Restaurant, which is adjacent to and west of the Shamrock. This man, according to two witnesses, was about 5 feet, 7 or 8 inches tall, of medium build, and weighed about 150 to 160 pounds — the same height, weight and build as the defendant. Two witnesses at the scene of the burglary saw the car; it passed one of them three times. This witness described the car as a '62 or '63 white Valiant. In making his getaway in the white car, the man drove across a vacant lot east of the Shamrock and turned north — through a deep depression — onto Route 34.

The Shamrock had been entered through a window next to the west door. The jukebox was smashed; the front was torn off the cigarette machine; the money-box had been pried from the pool table, and the cash register was damaged. Near the back door was a cardboard box packed with frozen meat, expensive whiskey and a portable radio. The cardboard box and the locks were bloodstained.

Fred Larsen — who was captured, subsequently convicted on a plea of guilty and sentenced for the crime of burglary — had known the defendant for ten years, and they had a sister-in-law in common, in Chicago. The defendant and Larsen drank together in an area tavern for about one and one-half hours the night before the burglary, having parted about 9:00 p.m. While in jail, Larsen told Sheriff Mundwiler that the man who was with him had a father-in-law in Millington, who had a business in Sandwich; and that the white car had been rented from the Econo Car Rental somewhere around Highland Park.

George Hoff testified that he operated the Econo Car Rental in Highland Park, and that on January 25, 1964, he rented a 1964 white Valiant car to the defendant, which was to be returned the next day. The car was recovered by Hoff on February 27, 1964, in a damaged condition, particularly the right front fender.

Sheriff Mundwiler talked with Larsen at the penitentiary and asked him if he would come back and testify. Larsen would not answer, but suggested then that Mundwiler get the other man's son, "Randy," who, he said, was with them at the time. The defendant had a nine-year-old son named "Randy" who was in the white compact Valiant car which was damaged at the front and driven by defendant to the home of his father-in-law at Millington, a distance of about ten miles from the scene of the burglary, within an hour and a half after a man of similar size, weight and build fled from the scene of the burglary in such car.

Bernard C. Porter testified that he lived in Millington and had an accounting business in Sandwich; that the defendant was his son-in-law; that he saw the defendant at Millington between 7:40 and 8:00 a.m., on February 16, 1964; that the defendant was in a small white or grey car; that the bumper and front axle was full of mud and weeds; that defendant's son "Randy" was in the car; that one of defendant's hands was bandaged, and that defendant told Porter that he had hit a bridge and hurt his hand.

Joseph Schleuker, another son-in-law of Bernard C. Porter, testified that the defendant came to Porter's home in Millington at about 7:15 or 7:30 a.m., on February 16, 1964; that he was driving a white or cream-colored Chrysler, compact car; and that Schleuker filled the radiator, and the defendant told him there was a hole in it.

Marion Elaine Sauber, stepdaughter of Bernard C. Porter and divorced wife of the defendant, testified on his behalf. She stated that the defendant picked her up in a white compact car, after midnight on Sunday, February 16, 1964; that they went to his father's apartment and stayed there until about 4:30 a.m., at which time the defendant drove her back to the hotel where she worked, leaving her there at about 5:30 a.m.; and that the defendant had hurt his hand on the vent of the car window and had wrapped it in a handkerchief. However, on cross-examination, Mrs. Sauber testified that in a telephone conversation with her stepfather about 8:25 a.m., on February 16, 1964, she said she had not seen the defendant for two weeks.

In the direct examination, the State's Attorney asked Larsen if he first met the defendant in the penitentiary and Larsen answered, "No." After Larsen had so answered, counsel for defendant objected to the question on the basis that it implied that the defendant had been in the penitentiary. The court noted the objection and proceeded with the trial. The defendant urges that the court committed reversible error in permitting the State's Attorney to ask, and the witness to answer this question. We note that the defendant offered no objection to the question until after it was answered in the negative; that no motion was made to strike the answer; and that the court never ruled on the objection. The negative answer would indicate an inference that defendant had not previously been in the penitentiary. Consequently, we find no prejudicial error in the foregoing sequel of evidentiary procedures.

Error is further urged by defendant in that the court permitted the People's witness, Sheriff Mundwiler, to testify concerning statements made by Fred Larsen out of the presence of the defendant — when Larsen was not under oath, or subject to cross-examination. However, this testimony now complained of was not elicited from the witness on direct examination by the State's Attorney, but rather was brought out by the attorney for the defendant on cross-examination, and he neither offered an objection thereto nor made any motion to strike it. The defendant, having asked for this information, cannot now object thereto (The People v. Villalobos, 20 Ill.2d 315, 319, 169 N.E.2d 745 (1960); The People v. Henry, 3 Ill.2d 609, 614, 122 N.E.2d 159 (1954)), and in addition, since no ...

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