Appeal from the Circuit Court of St. Clair County, Twentieth
Judicial Circuit; the Hon. RICHARD T. CARTER, Judge, presiding.
The defendant, James A. Hyde, was jointly indicted with Laverne Lumpkins by the Grand Jury of St. Clair County for the offenses of Theft of Property in Excess of $150 in value and Robbery. The first count of the indictment alleged theft of an automobile and the second count alleged robbery of a billfold, cash, a watch and an automobile.
The defendants were tried before a jury. The second count of the indictment charging robbery had been dismissed at the close of the evidence and the jury returned a verdict of guilty as to both defendants on the theft count and the court entered a judgment on the verdict. The defendant, James A. Hyde, has appealed from that judgment.
From the evidence it appears that the complaining witness, Donald Trowbridge, exited a tavern in East St. Louis, Illinois, at approximately 1:00 a.m. on September, 11, 1966. As he left the tavern and approached his automobile, a 1966 green Dodge Charger, he observed two negro men approaching him, one of whom was about his size and the other "quite a bit bigger." While looking for his keys that he had dropped to the ground, Trowbridge last observed the two men at approximately 20 feet. This was the last thing Trowbridge remembers. He was struck on the head and knocked unconscious. Upon regaining consciousness, Trowbridge notified the East St. Louis police about the incident. However, due to the insufficiency of the light and the distance of the observation, Trowbridge was unable to more particularly describe or identify the assailants.
Another witness, a service station attendant at Cahokia, Illinois, testified that at about 3:30 a.m. on the same morning three negro men, one tall and two short, entered his service station in a green 1966 Dodge Charger. He identified the defendant Hyde as riding in the back seat when the car entered the service station, and saw the defendant Hyde behind the wheel when he last saw them in the car. He further testified that the license plate contained the letters MM. The license number of the Trowbridge automobile was MM 3874.
The evidence further disclosed that at 10:30 a.m. the same day a policeman, Officer Mitchell of the St. Louis Police Dept. chased the green Dodge owned by Trowbridge in St. Louis, Missouri. The automobile was occupied by three negro men. The chase ended by the three men abandoning the car and running. The defendant Hyde was apprehended two blocks away while hiding in some weeds in a vacant lot, by two other St. Louis police officers. Officer Mitchell identified Hyde as one of the occupants of the car.
In behalf of the defendant, Catherine Peden, a friend of the defendant Hyde, testified that she was with him on September 11, 1966, from approximately 12:30 a.m. until 5:00 a.m. the same morning. During those hours she accompanied the defendant to the home of a male acquaintance. Then the three went to a tavern in East St. Louis where they danced, drank liquor, and watched a floor show which began about 3:00 a.m. Bessie Rayford, the girl friend of the defendant, accompanied them at the tavern. Bessie Rayford and Catherine Peden testified in support of the defendant's alibi that they were in the East St. Louis tavern from 2:15 a.m. until 5:30 a.m.
The defendant further testified that on the morning of September 11 at about 9:00 a.m. he was hitchhiking at the foot of MacArthur Bridge which crosses the Mississippi River to go to his brother's house in St. Louis, Missouri. He testified that a green sedan pulled up and offered him a ride and that the car contained two negro males whom he did not know. He testified that after arriving in St. Louis he became involved in a chase as described by Officer Mitchell. He also testified that when the driver stopped the automobile and the two other occupants began to run, he also began to run because he was presently on parole for the offense of burglary and that he didn't want to get mixed up in the situation.
In support of his appeal the defendant alleges that the court erred in not granting a directed verdict of acquittal, erred in failing to grant a mistrial due to certain statements made by the State's Attorney in his opening statement, erred in not permitting the defendant additional time to produce a witness, and erred in giving an instruction.
In support of the first allegation of error i.e., that the court erred in denying the defendant's motion for a directed verdict at the close of the People's evidence and again at the close of all the evidence, the defendant argues that although evidence of recent, exclusive, and unexplained possession of stolen goods after a theft is sufficient evidence to convict, that the alleged possession by the defendant was neither exclusive nor unexplained.
The defendant's first argument in this regard is that the evidence of possession is not exclusive in view of the fact that three persons were in possession of the automobile on both of the occasions after the theft whereas only two unidentified parties apparently took the car in the first instance, and further argues possession is not necessarily shown by proof of mere association with a stolen article.
However, as well settled is the rule of recent, exclusive and unexplained possession, it is equally well settled that joint possession with others may be exclusive within the rule. People v. Strutynski, 367 Ill. 551, 12 N.E.2d 628 (1938); People v. Scholler, 385 Ill. 93, 52 N.E.2d 130 (1944); People v. Wheeler, 5 Ill.2d 474, 126 N.E.2d 228 (1955).
In the present case the jury was justified in finding that the defendant's relationship to the stolen automobile was more than more association with the article and was actually possession within the meaning of the rule. From the evidence of the service station attendant it was apparent that the three individuals were acting in concert. The testimony of the police officer who gave chase to the automobile in St. Louis, Mo., concerning the fleeing of the three individuals would further indicate more than mere association with the article. Only the testimony of the defendant shows a "mere association" with the stolen car but his testimony was apparently rejected by the jury.
[4-7] The defendant next contends that the alibi evidence and explanation offered by the defendant and his witnesses nullified whatever inference of guilt might have been drawn from the evidence of possession. Accordingly, the defendant argues the court should have granted his motion for directed verdict at the close of all the ...