Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. WILLIAM S. WHITE, Judge, presiding. Affirmed.
MR. PRESIDING JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.
In a non-jury trial the defendant, Haywood Hanson, was found guilty of burglary and was sentenced to the penitentiary for not less than two nor more than five years. He contends that the evidence did not establish his guilt beyond a reasonable doubt.
During the night of April 20-21, 1965, the plant of the South Shore Waste Material Company, Chicago, was broken into and a typewriter, adding machine, checkwriting machine, two checkbooks, personnel records and clothing were stolen.
Two checks and a check stub were recovered. On April 30, 1965, the defendant offered the proprietor of a tavern a $144.84 check in payment for some drinks he had ordered. He had been in the tavern on other occasions but the proprietor did not know his name. The proprietor said he did not have enough money on hand to cash the check, but that he would take it to a currency exchange. The check was a South Shore Waste Material Company check payable to Robert Spilker. The defendant said his name was Robert Spilker and endorsed the check. The proprietor cashed the check at a nearby exchange and, after deducting the defendant's bill, gave him the balance.
Later in the afternoon of the same day the defendant attempted to cash a South Shore check at another currency exchange. The police were called and arrived as the defendant was walking out the door. The teller pointed to him and said: "Stop that man, he got [sic] a stolen check." The defendant was arrested and searched. A check payable to Haywood Hanson in the sum of $134.32 was found on him.
At the police station the defendant stated that he had received this check from a man named Jim Johnson in exchange for a load of scrap metal which he delivered that day to 35th and State streets. The defendant was searched a second time at the police station and a South Shore check stub was recovered from his wallet. He said he did not know how it got there.
At his trial the defendant denied that he committed the burglary, that the check stub was found on his person and that he cashed a check in the tavern. He testified that he was in the tavern on April 30th with Robert Spilker, a man who worked for him hauling scrap metal, bricks and other material. He said Spilker cashed the check. He insisted that he got the second check from Johnson and that Johnson had an office at 3505 South State Street. He said he received the check in payment for 7,000 bricks and some metal which he had bought at a building demolition site and that he transferred this material from his truck to Johnson's truck in an alley near Johnson's office. He testified further that when the teller at the currency exchange informed him that the check was no good, he suggested calling the police and waited five minutes for them to come. He freely admitted three prior convictions and said that he pleaded guilty to the prior crimes because he was guilty, but that he was not guilty of the burglary of the South Shore Waste Material Company.
In rebuttal the police officer testified that a driver's license and a social security card bearing the name of Robert Spilker were among the items found on the defendant's person when he was searched at the police station.
The defendant advances seven reasons why the evidence was insufficient to prove his guilt: the interval of ten days between the burglary and his arrest was too great to establish recent possession of stolen property; there was no evidence that he had exclusive possession of the stolen checks during this interval; his explanation about the checks overcame any presumption of theft arising from possessing them; the police did not search his home to see if the articles taken at the burglary were there; the police made tests for fingerprints at the burglarized company but nothing was done to compare them to his; the State did not call Jim Johnson as a witness and the State failed to have Robert Spilker testify.
The last four points are frivolous. There was no testimony that the defendant offered to let the police search his home and he has no reason to complain that the police did not attempt to build a stronger case against him by obtaining a search warrant and conducting such a search. Although there was testimony that the police looked for fingerprints at the South Shore plant, there was no testimony that suspicious ones were found. The defendant was the only one who said there was a Jim Johnson. The police could not find Johnson in the neighborhood of 35th and State and could not find a metal dealer or a junkyard in that vicinity. It was the defendant's privilege, not the State's obligation, to produce him if he existed. There was reason to suspect that Hanson and Spilker were the same person: the tavern keeper testified that Hanson said he was Spilker and he carried Spilker identification cards. If there was a Robert Spilker he was known to and worked for the defendant. The defendant had the right to subpoena anyone he wished; since he knew Spilker's whereabouts better than anyone else and since it would have been to his advantage to have produced him, he cannot complain that the State did not do so.
Aside from the possession of the stolen checks and the check stub, there is no evidence which connects the defendant with the burglary. However, recent and exclusive possession of stolen goods after a theft, robbery or burglary is sufficient to raise an inference or presumption of guilt unless the attending circumstances, or other evidence, overcomes the inference by creating a reasonable doubt of the defendant's guilt. People v. Strutynski, 367 Ill. 551, 12 N.E.2d 628 (1938). It is sometimes stated that if unexplained, the recent and exclusive possession of stolen property gives rise to an inference of guilt which may be sufficient to sustain a conviction unless there are facts and circumstances which leave in the mind of the trier of fact a reasonable doubt of guilt. People v. Franceschini, 20 Ill.2d 126, 169 N.E.2d 244 (1961). In People v. Bennett, 3 Ill.2d 357, 121 N.E.2d 595 (1954), the court put it this way:
"This court has often announced the rule that the possession of stolen property, the proceeds of a burglary or larceny, soon after the commission of the offense, is evidence of the guilt of the person or persons in whose possession it is found and is sufficient to warrant a conviction unless such possession is explained or unless there appears from all the evidence a reasonable doubt of the defendant's guilt."
The defendant contends that the explanations he gave about the checks nullified whatever inference of guilt might have been drawn from the possession of them particularly since his explanations were neither denied nor proved false.
When the courts speak of an explanation they do not mean that any explanation overcomes the inference of guilt. It must be a satisfactory explanation one that the trier of fact finds reasonable and acceptable. This does not mean that a defendant must assume the burden of giving a satisfactory explanation for the possession of stolen property or be found guilty if he does not, for the burden is always upon the State to prove him guilty beyond a reasonable doubt. It does mean, however, that the inference arising from the recent and exclusive possession of stolen property casts the burden of going forward with the evidence upon the defendant. If no explanation is made the inference maintains and the weight to be given it is for the trier of fact to decide. If an explanation is made, the acceptance or rejection of the explanation is also for the trier of fact. The defendant's explanations were not accepted by the trial judge and it cannot be said that they should have been. ...