Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. EUGENE L. WACHOWSKI, Judge, presiding.
Affirmed in part and reversed in part.
MR. PRESIDING JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
In a two-count indictment, defendant, Walter Radford, John Harrell, and Wilson Thomas, Jr. were charged with theft and conspiracy to commit a theft. Both Harrell and Thomas testified for the State, and a jury found defendant Radford guilty of both charges. He was sentenced to a term of 2 to 10 years on the theft count and 2 to 5 years on the conspiracy count.
In sum, Radford initiated a conspiracy with Harrell and Thomas to collect damages for self-inflicted injuries. Harrell broke the arm of Thomas and then pushed Thomas into the side of a moving automobile. Thomas received the sum of $3,000 in settlement of his fraudulent claim.
On appeal defendant contends: (1) He was convicted and sentenced both for theft and for conspiracy to commit the same theft, contrary to controlling Illinois law. (2) He was prejudiced when the trial court permitted Wilson Thomas, Jr. to display to the jury a scar which allegedly resulted from the alleged breaking of his arm. (3) He was prejudiced when a documentary exhibit of testimonial nature was sent to the jury room in violation of Illinois law. (4) He was prejudiced by the prosecutor's closing argument which called attention to his failure to testify, in violation of his constitutional rights. (5) He was sentenced upon conviction on Count I for an offense which was not charged in the indictment.
Harrell, as a witness for the State, related the details of the scheme proposed by Radford in January, 1963. On March 22, 1963, Harrell, at defendant's direction, broke Thomas' arm by placing it on an ironing board and hitting it with an automobile axle, and, at defendant's direction, Harrell pushed Thomas into a passing car. Thomas was taken to a hospital, and Radford brought a lawyer to see Thomas and represent him in his proposed claim for damages.
Thomas, as a witness for the State, testified as to the initiation of the scheme, the breaking of his arm, his unsuccessful attempt to dive in front of a car, and that at the signal of Radford, Harrell pushed him into a car, and he was taken to a hospital. He testified that his arm was operated on and, over objection, he was permitted to exhibit the scar to the jury. Thomas also told about his $3,000 settlement, of which $1,000 was paid to his attorneys. He received a net check for $2,000, which he and Radford cashed at a currency exchange. He gave Radford $1,200, and he kept $800.
The State's witnesses also included an investigator and a claim superintendent of State Farm Insurance. They related the settlement negotiations and the payment of $3,000 for a release. The checks were received in evidence.
The defendant did not testify but presented one witness, who testified that he had been the general manager of a Ford agency in March, 1963, and defendant Radford had been employed by him to repossess cars. Radford repossessed a car owned by John Harrell, and Harrell came to the agency and was very angry and told defendant Radford that he would get even with him.
The State does not contest defendant's contention that only one judgment of conviction and sentence should have been entered here. Therefore, we consider first defendant's contention that he was prejudiced when the trial court permitted Thomas to display to the jury the scar he allegedly acquired as a result of the breaking of his arm. Defendant asserts this constituted prejudicial and reversible error. Defendant's authorities include People v. Nickolopoulos, 25 Ill.2d 451, 185 N.E.2d 209 (1962), where the defendant was charged with assault with intent to commit murder. There, the Supreme Court held that evidence of blood on the victim's clothing and evidence of the extent of the victim's injuries was irrelevant and improper and of such a nature as to be highly prejudicial to the defendant.
The State contends that the extent of Thomas' wound was relevant, since the nature and location of the breaking of the arm might be significant in determining whether or not the breaking of the arm was an act in furtherance of the conspiracy to commit theft. It was evidence which tended directly to show that the accused was guilty of the offense of conspiracy.
We conclude that the exhibition of the scar on the arm of Thomas was not improper. Its relevance as evidence of an act in furtherance of a conspiracy to commit theft was a matter for the sound discretion of the court, and we fail to see that it was prejudicial to defendant in view of the testimony as to how the scar was brought about. Also, see People v. Cunningham, 73 Ill. App.2d 357, 218 N.E.2d 827 (1966); People v. Cohn, 358 Ill. 326, 193 NE 150 (1934).
Considered next is defendant's contention that defendant was prejudiced when his statement to an insurance company representative was sent to the jury room during its deliberations. Defendant argues that it was a direct violation of the explicit command of People v. Spranger, 314 Ill. 602, 145 NE 706 (1924), that a testimonial exhibit must not be sent to the jury room. The question of whether exhibits received in evidence and read to the jury may be taken to the jury room is within the sound discretion of the trial court. We are of the opinion that no abuse of discretion or prejudice is shown here. People v. Somerville, 71 Ill. App.2d 381, 219 N.E.2d 116 (1966); People v. Dixon, 75 Ill. App.2d 77, 221 N.E.2d 35 (1966).
Defendant next contends that in the closing argument, the prosecutor commented upon defendant's failure to testify. The record shows that the prosecutor on a number of occasions stated, "the testimony is uncontradicted . . ." or "it is not contradicted or rebutted." Defendant asserts, "The prosecutor's comments mentioned evidence presumably within the defendant's knowledge, with the implication that if these items of evidence were capable of being rebutted or contradicted, it was up to the defendant to take the stand and rebut or contradict them. Thus was his failure to testify called to the jury's attention."
Comments on defendant's neglect to testify are improper (Ill Rev Stats 1965, c 38, § 155-1), and a judgment of conviction may be reversed if such a comment is made. (People v. Cheney, 405 Ill. 258, 90 N.E.2d 783 (1950).) However, we believe the instant remarks come within the guidelines of People ...