Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. A.F. WELLS, Judge, presiding. Reversed and
MR. PRESIDING JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.
Harry Scott and Leon Walker were found guilty of burglary and sentenced to the penitentiary. Trial errors compel a reversal of their conviction.
Police officers, who were investigating a number of burglaries which had taken place on the north side of Chicago, arrested Dale McKinney and James Thompson on March 20, 1965, at 3:30 in the morning in the 5400 block of North Kenmore Avenue. McKinney and Thompson, who lived on the south side of Chicago, were questioned. McKinney gave the officers information which led to the arrest of Scott and Walker later the same morning in their south side homes. The officers went to Scott's home and then to Walker's. Walker lived in a small, two-room apartment and was in bed when the police arrived. On the dresser near his bed was a motor vehicle operator's license bearing the name of Barbara Jean Campbell, 5417 North Kenmore Avenue. Next to the license was a lady's purse. Walker said he knew nothing about the license or the purse, and a woman who was in the apartment said they were not hers.
Fifteen minutes after Walker's arrest the officers learned through police sources that the home of Mrs. Campbell had been burglarized on the early morning of March 19th. They brought Mrs. Campbell to their headquarters where she identified the purse as hers and picked Scott out of a lineup as the burglar who awakened her in her home at 3:40 a.m. Walker had been placed in the lineup but McKinney and Thompson had not. In fact, McKinney and Thompson were released before the lineup was held.
Scott and Walker were tried for the Campbell burglary. The case against Scott rested on his identification by Mrs. Campbell, and the case against Walker rested on her property being found in his home and on an oral statement made by him admitting his participation in the burglary. Walker denied making the statement.
McKinney was Walker's friend and frequently slept at his apartment. It was the defendants' contention that McKinney was the one who burglarized the Campbell home and that he shifted the blame on them in order to exculpate himself. They presented witnesses who said they saw Mrs. Campbell's purse in McKinney's possession on the morning of March 19th. One of these witnesses, a man who shared the same apartment with Walker, testified that before he left for work at 7 a.m. on March 19th McKinney came there with the purse, put it on the dresser and then lay down on the couch.
In his opening statement to the jury a defense attorney said that he intended to prove that McKinney and his companion were burglars, that they had burglar tools on them when arrested and that whatever McKinney told the police was for the purpose of avoiding punishment. Despite this theory of the defense, the court early in the trial improperly limited the cross-examination of the State's witnesses as to McKinney and twice admonished the jury to disregard any testimony referring to him. As the trial progressed the court relaxed its restriction and permitted the defendants more latitude in developing their theory of the case. At no time, however, did the court revise its prior instruction and even late in the trial, when McKinney testified for the State in rebuttal and denied involvement in the Campbell burglary, his cross-examination was restricted.
Another serious error was the injection into the case of testimony concerning other burglaries supposedly committed by the defendants. Both the prosecution and the defense were guilty of this and each blames the other for starting it. A review of the record shows that the subject was first opened by a witness for the State a police officer who volunteered on cross-examination that he did not know about the Campbell burglary at the time he arrested Scott and Walker. The inference from this was that they had been arrested for a crime or crimes other than the one for which they were being tried. The prosecution saw to it that this implication was not overlooked. On redirect examination the assistant State's attorney asked the following questions and the officer made the following answers:
"Q. This information that you testified to on cross-examination, Detective, that was given to you by McKinney. Was this regarding a burglary?
"Q. Is this why you went to the south side and arrested these gentlemen?
"Q. Because of information regarding ...