Appeal from the Circuit Court of Peoria County, Tenth Judicial
Circuit; the Hon. JOHN T. CULBERTSON, JR., Judge, presiding.
On January 7, 1966, three police officers in a squad car observed defendants on top of a store building in Peoria. A radio alarm brought two more officers in another car. After advising defendants of their rights, the officers questioned them regarding their presence and conduct.
Whittles volunteered: "I guess this would have been a good night not to have gone up there." Lucas said: "I guess." It is also related that Whittles told officers he and Lucas were going to get some television sets. Lucas just said: "Yes." Another witness said cash was mentioned. Asked how they were going to remove the material: they had not thought of that yet. Asked how they got on top of the building, Whittles demonstrated.
On January 7, 1966, complaint was filed charging defendants with attempted burglary. The magistrate continued the hearing thereon to January 21. The record does not indicate whether defendants were present in court.
On January 12, 1966, the grand jury returned an indictment against these defendants. They were brought in court, served with copies, counsel was appointed and Whittles was served with a list of witnesses to a purported confession. This indictment was dismissed with leave to reinstate. On February 16, a new indictment was returned charging attempted burglary. Defendants were brought into court and served as before and counsel again appointed.
Thereafter, several motions were filed from time to time by the defense. They were heard by the court and overruled except that a continuance of the trial setting was allowed. Finally, trial commenced May 16, 1966, and resulted in verdicts of guilty. Motions in arrest and for new trial were denied and defendants were sentenced.
There is no substantial dispute as to the foregoing statement of facts, but the defense asserts five reasons for reversal. They are here presented in the order of the argument in appellants' brief.
It is claimed defendants were denied due process of law, in that they were not taken without unnecessary delay before the nearest and most accessible magistrate after the arrest, in violation of section 109-1(a), chapter 38, Illinois Revised Statutes.
It is argued the effect of this detention without counsel prevented them from locating witnesses who might have provided an alibi defense. Also, that the lack of counsel thus occurred at a most critical stage of the proceedings.
The reference to alibi witnesses is not impressive. Here there were five eyewitnesses to the activities of the defendants as charged, plus their own admissions of an inculpatory content. A persuasive alibi defense could hardly be procured in this situation. Moreover, the inability to locate witnesses is refuted by the defense calling three witnesses who saw the defendants in taverns shortly before their arrest, one of the taverns being next door to the building which defendants climbed.
The purpose of these witnesses was to testify that the defendants were drunk fifteen minutes before their arrest. Whatever effect drunkenness might have, it suffices to say other witnesses testified the defendants were not drunk, and the jury had before them the circumstances that the defendants conversed while they were in the taverns, left under their own power, and climbed to the roof of a store building. The jury had ample reason to disbelieve the claim of drunkenness.
During the six days defendants were in jail without counsel, no attempt was made to obtain any statements from them. The appellants cite People v. Moriarity, 33 Ill.2d 399, 211 N.E.2d 704, in which a defendant had been held in jail 10 days and a confession obtained. The court declared the detention was illegal, and held the confession was not voluntary, therefore not admissible. Since no statements were procured from these defendants, it is our conclusion that no substantial prejudice was caused to them and this point is overruled.
It is contended the indictment should have been quashed for failure to state an offense. The charge was that defendants "pried a hole in the roof of a building with intent to commit the offense of burglary by entering the building with intent to commit a theft therein."
The first part of this charge refers to an attempt to commit a specific offense: burglary. The second part adds facts, which, if they took place, would constitute the offense of burglary. When they were not completed but a formal step was taken for that purpose, the offense is attempted burglary. The indictment is clear and is adequate to inform the defendants of the nature of the charge against them. ...