Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. JOHN C. FITZGERALD, Judge, presiding.
MR. PRESIDING JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
This appeal is taken by the defendant, LeRoy Edwards, from a judgment of conviction of the offense of burglary entered March 8, 1965. The defendant pleaded not guilty; the case was tried with a jury which returned a verdict of guilty of the offense charged. The court entered a judgment on the verdict and sentenced the defendant to the Illinois State Penitentiary for not less than five years nor more than eight.
On September 15, 1963, Ann Speight, the complainant, lived alone in a two-room apartment at 429 East 46th Street, Chicago, Illinois. At approximately 6:00 o'clock that morning she was awakened by a noise in her kitchen; she looked from her bed in the combination living room-bedroom and saw a shadow of a man in the kitchen with his hands in her purse; she said she could distinguish his features in a mirror which reflected into the kitchen. She ran into the front hall and yelled, rousing her neighbor; while knocking at her neighbor's door she saw the man come into her bedroom; she was in the hall about 20 feet from him, and stood there looking at him for two or three minutes. She stated that the man then turned back into the kitchen and went out through the window. She identified LeRoy Edwards, defendant, as the man she had seen in her apartment.
The building in question has four stories and about 24 apartments. The windows in complainant's apartment led to a fire escape. She stated that the window through which the defendant left was locked when she went to bed, and that after he had gone she observed that the window lock was broken; at the same time she saw two iron bars lying on the fire escape. She stated that nothing had been taken from her purse.
Police Officer Victor Bell testified that on September 15, 1963, in answer to a radio call at about 6:45 a.m., he went to 429 East 46th Street to investigate a burglary. He went to the second floor where he talked with the complaining witness and a Mrs. Lions; he then went to the basement apartment in search of a man who lived there and who answered the description of the burglar. He examined the kitchen window of complainant's apartment and found that it had been pried open from the outside and the safety catch broken; he found two bars lying on the fire escape.
The complainant testified that on September 18, 1963, she saw the defendant in the backyard of the building where she lived, and that she told her landlady. She stated that the next day Officer Roy Robinson talked with her and the landlady and showed them some pictures, two of which the complainant recognized as the defendant.
Officer Robinson testified that on September 20, 1963, he talked to the complainant and Mrs. Lions; that he later returned with pictures which he showed to them, and that the complainant identified the defendant. He stated that he subsequently made several trips to the basement apartment in the building for the purpose of apprehending the defendant, but was never able to locate him there.
The complaining witness stated that she went to the Wabash Avenue Police Station on September 28, 1963, accompanied by Officer Robinson, where in a lineup with three other men she saw the man she had seen in her apartment, and identified him as the defendant. Officer Robinson also testified that the complainant had identified the defendant in a lineup held at the Wabash Avenue station.
Officer Leroy Brooks testified that on September 28, 1963, he arrested the defendant at about 3:00 a.m. in the basement apartment at 429 East 46th Street, and that the defendant was discovered in a closet under some clothing.
The defendant did not take the stand. The defense consisted of four witnesses: Travis Edwards, John Edwards, John Mahoney, and Roy Robinson (Officer Robinson was also called as a witness for the State). Travis Edwards, wife of the defendant, testified that during the early morning hours of September 15, 1963, the defendant was in their basement apartment at 429 East 46th Street; that they had guests who played cards until 4:30 a.m.; that she had an argument with her husband and went to bed at 6:30; that her husband did not leave the apartment at any time that morning. She said there were about 22 people in the apartment playing cards and that if Officer Bell knocked at her door, as he had testified, she did not hear him. She also stated that from the date of the card party until the time of her husband's arrest, no police officer had come to the apartment looking for him.
The testimony of Officer Robinson as a defense witness does not appear in the abstract and consequently, we will disregard it.
The defendant first argues that reversible error was committed inasmuch as when Officer Bell was asked "Now after talking with the women, after talking with Mrs. Lions, did you go anywhere else in that building?" he answered, "Yes, there was supposed to be a fellow who committed burglary that answered the description that lived in the building, and we went there to look for him, and was unable to gain entrance." The State's Attorney then asked the officer to state where he looked for the defendant and he said he looked in the basement apartment at 429 East 46th Street; that he tried to gain entrance to the apartment but was unable to do so. The defendant argues that Officer Bell's statement, ". . . there was supposed to be a fellow who committed burglary that answered the description that lived in the building, . . ." brought before the jury an unrelated offense which was highly improper. Of course, it is the rule that to refer to the commission of other crimes of the defendant before the jury is improper; however, we must consider that the statement made by the police officer as it appears in the record was not necessarily an accurate account of what the officer said, since the transcript in this case is probably one of the worst we have had before us in this court. The complaining witness' couch is mentioned several times and is consistently referred to in the record as "coach"; there are many typographical errors, and in mentioning the dates the year is sometimes shown as 1963 and sometimes as 1964, when it is apparently meant to be 1963. The alleged testimony of the officer was not referred to in the argument of the defendant at the trial, nor was any objection made to it at the time. Considering the entire record, the officer's statement was probably not accurately reported; and in any case, it was not so prejudicial as to require reversal.
The defendant further argues that the following argument by the State's Attorney to the jury was improper:
Do the guilty resort to lying to a jury? What do you gain by it? You are as smart as we are, probably smarter, undoubtedly smarter. How do they try to persuade you? By the truth? There was no burglary. Twenty-two whist players. Twelve cans of beer. And we didn't know a policeman came. That was the defendant's wife's testimony. She has an interest, and I suppose that ...