Appeal from the Circuit Court of Cook County, County
Department, Criminal Division; the Hon. IRVING LANDESMAN, Judge,
presiding. Judgment reversed.
MR. JUSTICE BURKE DELIVERED THE OPINION OF THE COURT.
Defendant was found guilty at a bench trial of theft of an automobile and was sentenced to 5 to 10 years in the penitentiary. He appeals.
Shortly after midnight on July 21, 1963, Police Officers Behnke and Zientek were cruising in a squad car in a southerly direction on South Paulina Street in Chicago. Officer Behnke testified that as the squad car approached the intersection at Monroe Street he observed a 1963 Pontiac speed eastbound out of an east-west alley at approximately 116 South Paulina Street, then turn right and travel south on Paulina Street for a distance of about 110 feet. The Pontiac then turned west into another east-west alley at approximately 126 South Paulina Street. Officer Behnke stated that the police officers immediately gave chase upon seeing the Pontiac drive out of the first alley, and that during the chase they were never further nor closer than 100 feet from the automobile. The Pontiac was observed by Officer Behnke for the entire period of the pursuit, except for "a couple of seconds" or "a few seconds" after it turned into the second alley. The only occupant of the automobile was the driver.
The second alley is bounded on the south side by a factory building and on the north side by an apartment building, which is commonly known as 124 South Paulina Street. The apartment building is immediately adjacent to the alley and to the sidewalk of Paulina Street.
The squad car was driven into the alley and was stopped behind the Pontiac which was some 30 feet into the alley. The Pontiac was driverless, in neutral gear and rolling, and the motor was still running. As the squad car entered the alley, Officer Behnke observed the defendant "along side" or "a couple of feet" in back of the Pontiac and "walking fast" toward Paulina Street down the center of the alley. No person was observed in the alley other than the defendant.
Defendant was confronted by Officer Behnke on the sidewalk in front of the apartment building and was taken back to the Pontiac and questioned. He was asked for his driver's license but stated that he could not drive an automobile and had no driver's license. Defendant denied having had anything to do with the automobile. Officer Behnke testified that defendant told him that a man named "Slick" had driven the automobile into the alley and had jumped from the automobile and ran into a gangway.
After the questioning, police headquarters was contacted and it was determined that the Pontiac was reported stolen the afternoon of July 20th. Defendant was searched and his wallet, containing a parole card and an identification card, was taken from him. A short while later another squad car arrived at the scene. Defendant was then told to drive the Pontiac to the police station but refused, stating that he did not know how to drive.
Officer Behnke and another police officer, who had later arrived at the scene, drove the defendant to the police station. Upon arriving at the station defendant was ordered to follow the officers into the station, and when they reached a garage at the rear of the station, defendant broke and ran from the officers. He was apprehended after running some 150 feet.
Officer Behnke testified that there were about 15 people in front of the apartment building at 124 South Paulina Street, and that defendant was standing with the group when he was confronted by the officer. No one other than the defendant was questioned concerning the automobile, Officer Behnke stating that he "didn't have time." No search was made of the area by any of the police officers at the scene.
Defendant testified in his own behalf and stated that on July 20, 1963, during the afternoon and until about 10:00 p.m., he was at the home of his sister Mrs. Sirlena Bell, in Chicago. About 10:00 p.m., he and his sister went to the home of his girl friend, Dorothy Richardson, and after staying there some 45 minutes, the three walked to the apartment building at 124 South Paulina Street to see defendant's brother who was visiting at that address. Defendant testified that as he was speaking to his brother, who was leaning out of a second floor apartment window, an automobile came out of an alley approximately 75 feet to the north of where he was standing. The automobile made a noise as it turned out of the alley, proceeded south on Paulina Street and turned into the alley next to where defendant was standing. As the automobile went into the alley defendant recognized the driver as resembling a person named "Slick" whom he had previously met in a local poolroom. There was a noise in the alley as if the automobile had hit a pole or a garbage can and defendant stepped into the alley to see what had happened. Defendant testified that he saw the man get out of the car and run down the alley in a westerly direction. The squad car then pulled into the alley and Officer Behnke asked defendant if he had been driving the Pontiac, to which defendant replied "No." After the police had determined that the automobile was stolen, defendant was searched, arrested and taken to the police station. Defendant stated that he was ordered by the officers to drive the Pontiac to the station, but had refused for the reason that he did not know how to drive.
Defendant testified that on reaching the police station he overheard one of the officers state that because defendant was a parolee he was in a "mess-up." Defendant stated that he then recalled the warning of his parole officer that any contact with the police for any reason whatsoever would be a violation of his parole. Defendant testified that at this point he broke and ran from the officers and was apprehended a short while later.
The testimony of Dorothy Richardson, Wilbur Davis, Sirlena Bell and Bertha Crape, persons in and around the apartment building at the time of the incident, substantially corroborated defendant's account of the occurrence, with the exception of Wilbur Davis and Bertha Crape who were either unable to or did not look into the alley. The witnesses were further in agreement that the squad car arrived at the scene about a minute after the Pontiac turned into the alley.
Defendant maintains that the State's evidence failed to establish that he had possession or control over the automobile, that his uncontradicted evidence positively established an alibi and that his conviction rests on circumstantial evidence which can be explained on reasonable grounds consistent with his innocence.
[1-4] It is well settled that the possession of a recently stolen automobile is sufficient to warrant a conviction for theft of that automobile. People v. Litberg, 413 Ill. 132, 108 N.E.2d 468. It is also true that possession of stolen goods may be proved by circumstantial evidence. People v. Gavurnik, 2 Ill.2d 190, 117 N.E.2d 782. However, in order that recent possession be evidence of guilt it must be exclusive in the accused. The possession must be such as to indicate that the accused and not someone else took the property. If the place where the property is found is such that another person could have had access thereto as well as the accused, it cannot be said that the property was in the accused's exclusive possession and the circumstance would not be evidence of his guilt. People v. Lardner, 296 Ill. 190, 129 N.E. 697; Watts v. People, 204 Ill. 233, 68 N.E. 563. Mere association with a ...