Appeal from the Circuit Court of DuPage County, Eighteenth
Judicial Circuit; the Hon. WILLIAM J. BAUER, Judge, presiding.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.
Stephen T. Habdas, the defendant-appellant, and Nicholas Massesso, Jr., were jointly indicted by the Grand Jury for the offense of burglary, with intent to commit a theft on or about April 16, 1966, of a school building located at 935 Maple Avenue in Downers Grove, owned by the County Board of School Trustees of DuPage County. At a trial by jury, the defendant Habdas was found guilty, and a not guilty verdict was returned as to Massesso. Judgment was entered on the verdicts, and Habdas was sentenced to the penitentiary for not less than three nor more than eight years. It is from this judgment and sentence that he has appealed.
Gregg Rybinski, an administrative assistant of Public School Districts 58 and 59 of DuPage County, was summoned by the Downers Grove police, about 3:00 a.m., on September 16, 1966, to come to the Lincoln School located at 935 Maple Avenue an east-west street. The school districts maintained their administrative offices on the third floor of this building.
When he arrived, the front door of the building was open and certain office equipment owned by the districts was found outside the building and in the first floor foyer. The administrative offices were in disarray. Six electric typewriters, two dictaphones, several typewriter covers and two checks were missing. This equipment was later found alongside a ditch on 61st Street. A pane of glass was broken in a second-floor window, accessible by a fire escape and the roof of the second floor. The window, which had been locked and painted shut, was unlocked and raised.
Rybinski testified that a rectangular building juts out from the original building toward Maple Avenue, and is about 30 feet distant from the avenue curb line; that the entrance doors which face Maple Avenue, are about 30 feet back of this rectangular building, or a distance of 60 feet from the curb line; and that on September 15 and 16, 1966, there were two 100-watt bulbs over the entrance, and two 150-watt floodlights at the six corners of the building; and that the nearest corner floodlights were 30 to 40 feet from each side of the entrance which faces the north.
Officers Richard Harrison and Henry Niewold were on routine patrol duty at about 2:15 a.m., on September 16, 1966. They testified that Harrison was driving east on Maple Avenue; that as they passed the school, Niewold threw a spotlight on the entrance and they saw a 1961 Mercury, light blue or green in color, with its lights off and trunk open, backed up to the school entrance doors; and that the doors were ajar and two males were standing to the rear of the car.
Harrison testified that he stopped the car about 20 to 25 feet east of a driveway which runs from Maple Avenue to the entrance doors; that Niewold jumped out of the car and ran up the drive toward the school; that he (Harrison) attempted to back up the squad car to block the driveway, but the car stalled; and that he then got out and went back to the driveway. Both Harrison and Niewold testified that one of the parties got into the car and drove at high speed down the driveway and veered the car at Niewold, who shouted for the driver to stop as he leaped out of its path. Harrison stated that the car passed him at a speed of about thirty-five miles per hour while he was standing on the east edge of the entrance to the driveway; that he ordered the driver to stop; that the car slowed down somewhat as it passed him; and that the driver lost control of the car and it slid sideways across Maple Avenue at a further reduced speed, then sped off in a westerly direction.
Harrison stated that he observed the face of the driver for five or ten seconds as the car passed within 10 to 15 feet to the left of him; that he recognized the driver by face but not by name; that he fired one shot from his 357 magnum "with 38 loads" at the fleeing car when it was from 50 to 75 feet away; that the lights of the car were off, but he was able to read the first four of the six digits of the license number which were DN36 and that he radioed the central station in Downers Grove that there was a burglary in progress at the Lincoln School. Thereupon, he pursued the car; lost it, radioed the Westmont police directly to the west to halt any car of the noted description and with the partially reported license numbers; and then returned to the school.
The testimony conclusively established that in addition to the lights aforementioned, there was a 450-watt fluorescent street light on Maple Avenue about 15 feet from the school driveway.
Harrison further testified that when he returned to the school, Sergeant Drendel and Officer Kelly were there; that he went to the administrative offices, found them in a state of disorder and saw the broken window; that he later went to the Downers Grove Police Station and saw the 1961 Mercury Sedan which bore license number DN3648; and that there was a bullet hole directly in the center of the trunk which did not go through the metal but rather, left a groove in it.
Niewold further testified that when he threw the spotlight on the school doors, one of the parties standing behind the car in question had a "typewriter like object" in his hands. His testimony corroborated that of Harrison relative to the manner in which the car left the school entrance, except that he testified that the lights of the car were on as it went by him.
Niewold also stated that the car passed within 1 or 2 feet from him; that he looked into the side window and saw the driver's face which was illuminated either by the reflection from the floodlights or from the dashlights or street light; that he identified the driver whom he knew by sight but not by name; that he then unsuccessfully pursued the other party who ran around the school building to the rear; that Drendel and Kelly arrived as he returned to the school; that he went to the administrative offices which had been ransacked; that all but one typewriter had been removed; that a pane of glass in a window, which had been painted shut, was broken; that the window was unlocked and raised; and that there were no jimmy marks on the window.
Officers Drendel and Kelly testified with reference to what they observed when they arrived at the building at about 2:30 a.m., September 16, 1966. Their testimony in this respect corroborated the testimony of the People's other witnesses. They further testified relative to discovering the missing typewriters and dictaphones along a ditch on 61st Street while searching for the party who ran from the school after the 1961 Mercury had been driven from the school entrance.
Robert Brindac, a police officer of the Village of Westmont, testified that he was driving a police car in Westmont about 2:30 a.m., on September 16, 1966, when he received a dispatch to be on the lookout for a 1961, blue-green Mercury Sedan with a partial license number DN36 , with one male driver who was wanted for burglary in Downers Grove; that he saw such a vehicle about 2:49 a.m., bearing license number DN3648 and he followed it until it stopped at 413 North Grant Street; that he stopped behind it, called to the driver, whom he recognized as Stephen Habdas, when he got out of the car; that he told Habdas he ...