Appeal from the Circuit Court of Cook County; the Hon. JAMES
J. MEJDA, Judge, presiding. Affirmed.
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
Defendant was indicted for the offense of theft "in that he, knowingly obtained and exerted unauthorized control over an automobile, of the value of more than one hundred fifty dollars, the property of Philip H. Bowers, intending to deprive said Philip H. Bowers permanently of the use and benefit of said property, in violation of Chapter 38, Section 16-1(a), of the Illinois Revised Statutes 1965." In a bench trial he was found guilty as charged and sentenced to the penitentiary for a term of one to two years. On appeal he contends (1) the State failed to prove him guilty beyond a reasonable doubt, and (2) the trial judge acted under an erroneous assumption of law and shifted the burden of proof to defendant.
The record shows that on January 17, 1967, an automobile owned by Philip H. Bowers was stolen from a Chicago parking lot. On January 22, 1967, two police officers saw defendant driving the stolen automobile and arrested him while in a gas station at 41st and Drexel Avenue, Chicago, Illinois.
Deloris Randolph, a witness for the defendant, testified that on January 22, 1967, defendant was working for her at the Orange Tree Lounge at 1037 West 63rd Street, Chicago. She had been the owner of the lounge for two years, and defendant had worked there for more than one year. On January 22, she was running a little short of beer and asked one of her regular customers, "Shorty," if he would drive defendant to a wholesale liquor store to purchase some beer. Shorty told her he had a little too much to drink, but he would let defendant drive his car. At about 3:00 p.m. the defendant left with $30, in Shorty's car, and Shorty stayed in the tavern. That night at approximately eleven o'clock, she told Shorty that she had received a telephone call that defendant had been arrested, and "it was something regarding the car. At that particular time, I could hardly understand, because there was so much noise in the tavern." Shorty replied, "I don't understand that. I'll go and check it out. Where is he supposed to be?" The witness further testified that defendant could have bought the beer either at 63rd and Loomis or at 43rd and Michigan. She stated she was not related to the defendant in any way.
In rebuttal, the arresting officer, James Ball, testified that when he searched the defendant he found $10 and no beer was found in the car. He did not inventory the money found and did not mention it in his report.
Considered first is defendant's contention that the State failed to prove defendant guilty beyond a reasonable doubt. Defendant contends that "knowledge that the car was stolen" was a necessary element in the State's case, and the testimony of Deloris Randolph clearly demonstrated defendant's innocence. Defendant argues there was nothing in the record which contradicts the fact that defendant had no knowledge that the car was stolen and, therefore, his conviction rests on evidence which was explained on reasonable grounds consistent with the defendant's innocence.
Defendant cites People v. Kelly, 84 Ill. App.2d 431, 228 N.E.2d 561 (1967), where a conviction for criminal trespass was reversed when the defendant's evidence showed at the time he entered the car he had no knowledge it was stolen, and nothing in the record contradicted this evidence. Defendant also cites People v. Botulinski, 383 Ill. 608, 50 N.E.2d 716 (1943), where it is said (p 615):
"[W]here circumstantial evidence is relied upon the facts and circumstances proved must be sufficient to establish the guilt of the person accused to a moral certainty and to the exclusion of every other reasonable hypothesis."
The State maintains the theft was not disputed nor was the evidence surrounding the arrest of the defendant. Therefore, the only issue before the court was the credibility of Mrs. Randolph and the weight to be given her testimony. The authorities cited by the State include People v. Barnes, 26 Ill.2d 563, 188 N.E.2d 7 (1963), where it is said (p 566):
"It is well settled that the recent, exclusive and unexplained possession of stolen property by an accused gives rise to an inference of guilt, absent other facts and circumstances which leave in the mind of the jury a reasonable doubt as to guilt. . . . The jury did not believe defendants' explanation of how the stolen property got into the car. We cannot say that the jury was not justified in finding them guilty of burglary."
Also, People v. Booher, 73 Ill. App.2d 226, 218 N.E.2d 779 (1966), where it is said (p 229):
"Defendant argues that his testimony tends to reasonably explain his presence in the building and that there are no circumstances inconsistent with his explanation. This argument is based on the false premise that the court must believe defendant's testimony. However, it has long been the law that the statements of a defendant or witness may be so inherently improbable as to induce the court or jury to disregard his evidence, even in the absence of any conflicting testimony. The witness may be contradicted by the facts which he states as completely as by direct adverse testimony and there may be so many omissions in his account of the transaction, that his entire story is discredited. Under such circumstances, the testimony contains its own impeachment."
After examining the testimony of Mrs. Randolph, we agree with the State that her testimony was so inherently improbable as to induce the trial court to disregard her evidence, "even in the absence of any conflicting testimony." As argued by the State, it was not reasonable for a casual customer to lend "his new 1967 Oldsmobile convertible" to an employee of a tavern and not to be concerned when it was not returned. It was unreasonable that Mrs. Randolph made no attempt to aid the defendant when she allegedly heard of his arrest while on an errand for her, and also for her to make no effort to inform the police as to how defendant got the car, especially since it was through her instigation that he had possession of it.
The trial court chose not to believe the testimony of Mrs. Randolph, and we will not substitute our judgment for that of the trial court. We find the necessary elements of the offense of theft, ...