Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. EDWARD F. HEALY, Judge, presiding. Judgment
MR. JUSTICE LYONS DELIVERED THE OPINION OF THE COURT.
In a jury trial, the defendant, Sylvester Lewis, was convicted of burglary and judgment was entered accordingly. After motions for a new trial and in arrest of judgment were denied, he was sentenced to five (5) to fifteen (15) years in the Illinois State Penitentiary. He appeals.
In the early morning hours of August 26, 1963, a television and radio shop at 122 East 43rd Street in Chicago, Illinois, was burglarized. Mr. Jimmy Luckett testified that he was the proprietor and had left the premises just a few hours before, locking the front door as well as the iron gate at the rear entrance to his store. He explained that he had placed an iron bar across the inside of the rear door before he locked it.
At approximately 3:00 a.m. on August 26, 1963, Mr. Luckett returned to his place of business, in response to a police message that his store had been broken into. He testified that unlawful entry had been effected only through the rear door as someone had pried open the lock on the iron gate and had punched a hole through the rear door which also served to lift up the iron bar. He went on to say that his rear door was located in a long, dark passageway leading to the alley and no one could see his rear entrance from 43rd Street itself. He remembered that upon arriving at the scene he noticed an apparently abandoned Buick automobile in the alley and in it were some of his television sets and radios. He also noticed other television sets of his in the alley itself near the car and in the wide passageway connecting the rear of his store to the alley.
Officer Alvin Daniels also testified for the prosecution and stated that in the early morning hours of August 26, 1963, he and his partner, in a squad car, went into the aforementioned alley on a routine patrol. The alley itself was illuminated by few lights but the squad car's headlights brought into view an open car trunk. Sensing a crime in progress, Officer Daniels' partner turned on the police vehicle's spotlight, and Officer Daniels, who was sitting in the front seat of the squad car on the right-hand side, saw that a man, carrying a television set, was approaching the other car. The offender was looking directly into the glare of the police car's spotlight and headlights, and Officer Daniels was able to look at him directly for a few moments at a distance of approximately twenty to forty-five feet, before he dropped the television set and fled, and was not apprehended that night.
Officer Daniels went on to testify that the abandoned vehicle, with television sets and radios in it, was a 1958 Buick hardtop. The police officer concluded his testimony on direct examination by stating that before becoming a police officer, he had been a practitioner in the field of mortuary science and had taken courses studying physical profiles and human faces. He observed the defendant that morning in the alley and had an opportunity to get a front view of his face. He then identified the defendant in the courtroom as the man he had seen in the alley, as well as the man he had seen in December 1963, when the defendant, after his arrest, was brought from the lockup, by himself, to be identified by Officer Daniels.
On cross-examination, Officer Daniels testified that when he saw the defendant in the glare of the spotlight and headlights, the defendant was approximately twenty, thirty, to forty-five feet from him and he was able to observe him for moments.
Detective Otto McCollum testified for the State that he was a burglary detective assigned to this case. He investigated the ownership of the abandoned 1958 Buick automobile and found a Mr. Luther Lewis to be the title owner. Upon talking to Mr. Luther Lewis, Detective McCollum determined that the son of Mr. Lewis, Sylvester Lewis, actually had sole possession of this car. The detective then placed a stop order at Police Headquarters against the defendant for suspected burglary.
The defendant's father, Luther Lewis, was called as a State's witness and testified that, prior to the date of the burglary, he had bought a 1958 Buick hardtop auto for his son, Sylvester, to drive as he, Luther Lewis, did not drive. When asked about the signed statement he had given Detective McCollum in the police station on March 25, 1964, allegedly implicating his son in the burglary, Mr. Luther Lewis testified that his memory was now faint and he had been under a doctor's care for heart trouble and nervousness. Pursuant to his oral request, his signed statement was read to him by the State's Attorney out of the jury's presence, and when the jury returned, Mr. Luther Lewis testified in accordance with the written statement he had given Detective McCollum. His testimony was as follows:
"On August 26, 1963, I had a conversation with my son in which he said he and others had broken into a record shop and they stole some radios and what-not and they were in the car. He asked me if I would turn in a report that the car was stolen, and I said no."
Officer Mucharski called as a witness for the State, stated that he and his partner were investigating a pattern of burglaries in the neighborhood of 63rd and Ingleside in Chicago, Illinois, when they saw the defendant, on the afternoon of November 27, 1963, standing next to a garage in an alley in this neighborhood. They asked the defendant if he lived in the neighborhood and if he had identification papers. The defendant gave them a social security card and an unemployment compensation card, saying he was Richard Scott. The social security card had Richard Scott's name on it, but the unemployment compensation card read Sylvester Lewis. Again, the defendant said he was Richard Scott, whereupon the officers placed him in their squad car and proceeded to the police station to investigate these two names. The defendant was fingerprinted and also at the police station, Officer Mucharski remembered a stop order had been placed against a Sylvester Lewis.
In response to Officer Mucharski's call, Detective McCollum came to the police station an hour later, and Officer Mucharski testified that the detective confronted the defendant with a picture which police officers have with files and which Detective McCollum had taken out of his file. The defendant viewed this picture, said it was his, and admitted being Sylvester Lewis, which was also revealed by his fingerprints. He denied being involved in the burglary, however.
On cross-examination, Officer Mucharski testified that he arrested the defendant for questioning due to his conflicting identification papers coupled with the fact that the defendant was stopped in an area troubled with a pattern of burglaries.
The defendant did not testify. The only witness for the defense was Christine Lewis, the defendant's wife, who was an alibi witness. She testified that she had fallen down some steps at home on Saturday, August 24, 1963, and her husband had stayed with her on the night of August 25, 1963, a Sunday; that they watched television together and both retired at 1:30 or 2:00 ...