Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. EUGENE L. WACHOWSKI, Judge, presiding.
Judgment of conviction affirmed.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.
Rehearing denied December 19, 1966.
The defendant appeals from a conviction of burglary by the court sitting without a jury. He was sentenced to the penitentiary for a term of one year to one year and a day.
The defendant contends that the court erred in finding the defendant guilty of burglary, because the evidence did not show that he entered a building, or participated in a burglary or conspired with those who did, and that the evidence did not show that the defendant was at any time in exclusive possession of the stolen goods.
The defendant, together with Abe Reeder and Joseph Sender, was indicted for the crime of burglary. The indictment charged them with knowingly entering into the dwelling house of Mary Fudala at 4250 North Marine Drive in Chicago, without authority and with intent to commit the crime of theft, contrary to section 19-1 of the Criminal Code (Ill Rev Stats 1963, c 38, par 19-1). The defendant and Abe Reeder were tried together and were represented by separate counsel. Reeder was acquitted, and the defendant Florman was found guilty of the charge of burglary.
Mary Fudala, the victim of the burglary, testified that on September 25, 1964, she lived in apartment 2101 at 4250 Marine Drive. She knew Joseph Sender, whom she had hired to paint her apartment on three occasions. At about 6:00 or 6:30 that evening she went with Joseph Sender and her son to a restaurant. They returned about 10:30 or 11:00 o'clock p.m. She further testified that she had jewelry, valued at about $25,000, exposed in trays on the dresser, a chinchilla wrap and a mink jacket in the apartment when she left for dinner. Upon her return the trays with the jewelry, plus the fur wrap and jacket, were missing. She further testified that on October 15, 1964, she saw Joseph Sender and his wife, Shirley, on separate occasions. She had talked to Mrs. Sender several times that day on the telephone. On October 16, 1964, at about 9:00 a.m. she met Shirley Sender in Sender's apartment. Later that same day, at 8:00 p.m., they again met at the Lincoln Village, at which time Shirley gave Mrs. Fudala a key. The next morning Mrs. Fudala went to the Northwestern Station to a box where Mrs. Sender said she would find her things. She opened the box with the key and took out a plastic bag which she had purchased. The bag was stuffed with her furs and about half of the stolen jewelry. On October 19, 1964, Mrs. Sender gave Mrs. Fudala another key at the Wilson Avenue Station. Mrs. Sender took Mrs. Fudala to a locker and Mrs. Fudala opened the locker. There she found "something similar to a cigar box in it." Nearly all of the balance of the jewelry was in the box.
Margaret Davis, a waitress at the Imperial Towers on Marine Drive, testified that while at work on September 25, 1964, in the morning, she saw Joseph Sender and the defendant Florman and Reeder sitting in a booth. She served them four coffees while they were in the restaurant that morning. She did not hear what they were saying but they remained in the restaurant for about an hour and a half talking. She testified she did not notice what anyone was wearing but she did identify Reeder as being present with Florman and Sender. She did not know the names of the people who were charged in this case excepting that of Sender.
Joseph Sender was called as a witness for the People and testified that he had been previously convicted in this matter. He testified that on October 15, 1964, he saw the defendant, Ben Florman, in the Imperial Towers restaurant; that he talked to him about painters. He also had a telephone conversation with the defendant on October 15, 1964, at which time he told Florman that his, Sender's, life was threatened and he told the defendant Florman that if he knew anybody who had any connection with the burglary he wanted "that stuff" given back to Mrs. Fudala. He also testified that the defendant Florman said he didn't know. "But if he has any information, if he has it, he'll try to get it back for me." On the afternoon of October 16, 1964, Sender met the defendant at Kimball and Bryn Mawr Avenues. He further testified that the defendant brought a package and that the defendant said, "This is it." Sender went to the Northwestern Station at Canal and Washington and put the package in a box and then told his wife, "Please, get a hold of Mrs. Fudala. Here's the stuff back." He gave the key to the locker to his wife.
Shirley Sender, the wife of Joseph Sender, testified that on October 16, 1964, her husband gave her a key. She then got in touch with Mrs. Fudala and turned the key over to her.
Abe Reeder, was called as a witness in his own behalf. He testified that he did not burglarize the Fudala apartment and did not participate in the burglary of that apartment. He also stated that he was a partner of the defendant Florman in the B & F Construction Company, and that Joseph Sender is his brother-in-law. Shirley Sender is his sister. He also testified as follows:
"Q. Did you overhear a conversation by Mr. Florman that he had the goods?
A. Sometime in October, the early part ...