Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. HERBERT C. PASCHEN, Judge, presiding. Judgment
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.
The defendant, Joe Ray, and co-defendant, George Brewer, were jointly indicted and tried for the crime of burglary. George Brewer pleaded guilty and Joe Ray pleaded not guilty and waived a jury trial. Ray was found guilty and sentenced to serve two to four years in the penitentiary. This appeal is brought by defendant, Joe Ray, contending that he never had exclusive possession of the stolen property and, in fact, had no possession at all, which he says creates a reasonable doubt as to his guilt and further, that the State failed to prove beyond a reasonable doubt that he committed the crime either by actually breaking or entering or by acting as an accomplice.
On the evening of January 8, 1965, a locked warehouse of Colby and Sons, 212 North Sangamon Street, was broken into and several cartons of articles, including an adding machine and a typewriter, were stolen.
At 9:00 p.m. that same evening Officer Norman Angelo and his partner, while on routine patrol, stopped an automobile for failure to stop at a stop sign at Lake and Sangamon Streets. He said that Joe Ray, the driver, did not have a driver's license and would not explain where he was coming from or was going. When the driver stepped out of the car he noticed large boxes on the rear seat, a typewriter underneath and an adding machine on the floor of the front seat. The other occupant, co-defendant Brewer, was asked to step out, ran and was apprehended. At the police station they observed the name of John Colby, 212 North Sangamon, on the boxes. He said that when they stopped the car it was a block and a half from the Colby warehouse and when they questioned the defendant about the merchandise he answered he was just in the car and didn't know where it came from or how it got in the car. He also testified, on cross-examination, that when he opened the trunk of the car with the car's keys he found another box and two framed pictures.
Brooks Davis, Colby's sales manager, identified the recovered cartons and their contents, and the typewriter, adding machine and paintings as property of Colby's.
Gladys Ray, the defendant's wife, testified that her husband was a mechanic and drove his car part time for Bob's Livery Service. She said that on the evening in question she borrowed his car to take their child to the hospital and returned the car to him at Bob's Livery Stable on Paulina Street about 9:00 p.m.
Dorothy Gaddis testified for the defendant that she was a telephone operator for the livery service and was working on the evening in question. Her job was to take calls for trips and dispatch the drivers who used their own cars. She said she got a call about 10:30 or 11:00 p.m. from a person who gave his name as George who requested that she send a cab to Lake and Sangamon which was the last call she gave to the defendant.
Ozzie Edwards testified that he worked part time for Bob's Livery Service and he saw the defendant on the day in question at Bob's between 9:30 and 10:00. A call came in at that time and Dorothy gave it to the defendant. James Miller, defendant's father, testified that he went to the Cab Stand at 9:00 to meet his son who was going to drive him to Kankakee. George Brewer, co-defendant, invoked the privilege against self-incrimination when called as a witness for Ray.
The defendant, Joe Ray, testified that he was a part-time driver for Bob's Livery Service at 14 South Paulina and that he reported for work about 5:00 p.m. on January 8th. He said his wife borrowed his car to take their baby to the hospital and returned it about 9:00 p.m. He said Dorothy Gaddis told him to go to Sangamon and Lake and pick up a man with a brown jacket. He said when he arrived there a man in a brown jacket instructed him to drive his car near an alley of a building where the man loaded boxes into his car. He then was stopped by the police who told him he didn't stop at a stop sign and had no taillights and he couldn't produce a driver's license because he didn't have one. When the officer asked him what was on the back seat he told him he didn't know and to "ask the gentleman, it belongs to him." He also said he never saw Brewer before.
On cross-examination he testified that he saw Brewer put boxes on the back seat, but didn't see him put a typewriter there or see him put an adding machine in the front seat because he was listening to his radio all the time. He said the man asked him to put some articles in the trunk and he opened it and put them there.
The defendant contends that in order to sustain a conviction for burglary upon the possession of stolen property it must be shown that there was possession, that it was recent, exclusive, unexplained, and that there were no other facts which created a reasonable doubt as to the defendant's guilt. He argues that the burden is on the prosecution in a criminal case to establish beyond a reasonable doubt not only a defendant's guilt, but also the essential elements of the crime, citing People v. Sanford, 24 Ill.2d 365, 181 N.E.2d 118.
Stated another way, the defendant concedes that it is a well settled rule that the recent, exclusive and unexplained possession of stolen property by an accused person in and of itself gives rise to an inference of guilt, which may be sufficient to sustain a conviction in the absence of other facts and circumstances which leave in the mind of the jury, or the trial court if a jury is waived, a reasonable doubt as to his guilt. People v. Franceschini, 20 Ill.2d 126, 169 N.E.2d 244; People v. Woods, 26 Ill.2d 557, 188 N.E.2d 1.
The defendant maintains that he never had exclusive possession and, in fact, had no possession at all. He also insists that his explanation and defense to the burglary charge was sufficient to negate any presumption of guilt, citing People v. Barnes, 311 Ill. 559, 143 N.E. 445 and People v. Urban, 381 Ill. 64, 44 N.E.2d 885.
In Barnes the defendant was a passenger in a stolen car and the driver admitted stealing the car and assumed full responsibility for the theft. The defendant testified that after their car broke down her friend returned with the car in question and when she asked him where he got it was told it was none of her business. The Court concluded that the evidence only showed that the driver stole the car and that it was in his exclusive possession from that time until he was arrested and that it was not shown by any affirmative act of the defendant that she actually advised, encouraged, aided or abetted the perpetration of the crime. The Court went on to say that mere presence of a person is not sufficient to constitute him a principal, or mere association with a stolen ...