Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. WALTER P. DAHL, Judge, presiding. Affirmed.
MR. PRESIDING JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.
OFFENSES CHARGED IN THE INDICTMENT
(2) Possession of burglary tools. *fn2
After a jury trial, defendant was found guilty of both charges and was given concurrent sentences of 10 to 25 years for burglary, and 1 to 2 years for possession of burglary tools.
(1) The charge of burglary was not proved beyond a reasonable doubt.
(2) There was neither evidence of burglarous intent nor evidence to connect the burglary tools to the burglary charged, so the State failed to prove the offense of possession of burglary tools.
(3) The court permitted inadmissible evidence to go to the jury.
(4) There was prejudicial error in the State's closing argument.
(5) The State's instruction given on circumstantial evidence was erroneous, and it was error to refuse defendant's instruction on circumstantial evidence.
Testimony of State Witnesses
She was fifteen years old and resided at 1014 Dinsmore Road, Winnetka. On the evening of July 9, 1964, at approximately 11:30 p.m. she completed taking her shower prior to retiring. She stepped out of the bathroom located next to the guest room on the second floor. Just then she heard noises resembling "running down our stairs, and also like keys or change in the pocket was jingling." Her younger sister was asleep and no one else was home. From the landing, Mary looked downstairs, saw that the lights were off, and observed nothing unusual. However, as she passed her parents' bedroom on the second floor, she saw that the lights were turned on, three drawers were open in her mother's dresser, and the contents were in a state of disarray. The top drawer of her father's dresser also was open. At no time did she see the person whom she had heard go down the stairs. She called the police and they arrived right away. They found the front door and the basement door locked, but the kitchen door was open. Mary could not be sure she had locked it before she took her shower.
George L. Krueger, Winnetka Police Officer
At 11:41 p.m. on July 9, 1964, he responded to Mary Lund's call concerning a prowler. In an unmarked police car he drove to the intersection of Dinsmore Road and Rosewood Avenue in about a minute and a half. There he noticed an Oldsmobile parked on the west side of Rosewood, south of Dinsmore. He called for a license check and ascertained that the license plates had been issued to a James Highland of Wilson Avenue, Chicago, for use on a Chevrolet. Officer Krueger drove past the Oldsmobile but saw no one in the car. He turned around and parked behind the Oldsmobile. It was dark at that location. He had been watching the car for about three minutes, when he saw the car light go on. He radioed for assistance and then pulled his car to the front of the Oldsmobile and saw a man standing beside it. He approached the man and asked him what he was doing there. The man replied that he was driving by when his car broke down and stalled. He identified himself by his driver's license as Joseph Johnson, 1030 Sheridan Road, Winnetka, at which address he had formerly been employed. Officer Wallace arrived just as Officer Krueger began to question Johnson. The latter told Krueger that he had recently purchased the Oldsmobile and had transferred license plates from a Chevrolet which he had bought with those plates. Johnson said that he was en route from his place of employment at 195 Maple Hill Road, Glencoe, to his home at 1322 Sedgwick in Chicago when he became lost and his car broke down. He stated he had come up Tower Road, made a turn and ended up on Rosewood. Tower and Rosewood do not intersect, however, and Tower Road is about a quarter mile from the corner of Dinsmore and Rosewood. Defendant was dressed in a black suit, white shirt, black tie, black loafers, and wore no socks. The night was warm, the streets dry, and the ground damp with dew. Defendant was arrested for "fictitious plates" and was taken to the police station where a search of his person revealed a wallet with currency in his left rear pocket and a half dollar and pennies in his right front pocket. Officer Wallace found two Kennedy half dollars in defendant's right rear pocket. On cross-examination Officer Krueger related that defendant told him that his car had a vapor lock. The Oldsmobile was parked about a half block from the Lund home. There were no other cars in the area. As far as Krueger was able to ascertain, defendant's story about the transferred plates was true. Under the front seat of the Oldsmobile was found a pint bottle half full of vodka, a small crowbar and a bolt puller, or lock puller.
Gordon Wallace, Winnetka Police Officer
He answered a call to assist Officer Krueger at the corner of Rosewood and Dinsmore at about 11:41 p.m. on July 9, 1964. When he arrived, he parked his squad car and walked up to Officer Krueger and defendant. Defendant wore a black suit, a white shirt, a tie, black loafers, and no socks. His shoes were highly polished and dry. Upon hearing "something jingling," Officer Wallace searched defendant's right rear pocket and discovered two brand new Kennedy half dollars. There was nothing else in that pocket. Wallace explained that he kept the half dollars at that time because they were found in a different location from defendant's other change. He then searched under the front seat of the Oldsmobile and found at the left-hand side a pry bar and a lock puller, as well as a bottle of vodka, half empty. In the center on the front seat he found a pair of pliers. The tools and the half dollars were admitted into evidence. Wallace stated, over objection, that one of the tools resembled a cable cutter but differed from a standard cable cutter in that it had "been ground down on either side of the tongs to make the opening wider, and thinner at the point." Also over objection, Wallace stated that from his experience as a police officer, he knew that the purpose of narrowing the point of such an instrument was so it could be "used to put on a lock, a round, tumbler type lock, and clamp down and twist the lock, pull the lock out." In this condition the tool is known as a "lock puller." Wallace asked defendant why, if his car had been causing trouble, ...