Appeal from the Circuit Court of Cook County; the Hon. JAMES
A. GEROULIS, Judge, presiding. Judgment affirmed.
MR. JUSTICE LEIGHTON DELIVERED THE OPINION OF THE COURT.
Defendant was charged with burglary. A jury convicted him. He was sentenced to a term of five to ten years.
In the issues presented for review, defendant contends:
1. It was reversible error for the State to comment upon the absence of potential defense witnesses when they were neither related to, nor employed by the accused, and when the accused made no effort to explain their absence;
2. Taken as a whole, the State's closing argument was so improper as to deny accused a fair trial;
3. It was reversible error for the judge to give State's instruction No. 9 on credibility while refusing to give defendant's instruction No. 18 on credibility.
Evidence disclosed that Calvin Nance owned a grocery store in Chicago, Illinois. On Sunday, July 16, 1967, he locked it and left for a vacation in West Virginia. On July 19, at about 3:35 a.m., Chicago policemen Labiak and Ross were called to investigate a burglary. They went to the Nance address. According to Officer Labiak, he saw the defendant crawling out of a broken window of the building. While Labiak and Ross were on the scene, two other policemen, Schaffer and Biszewski, arrived. The defendant ran up an alley. The officers chased him. After a warning shot was fired by Schaffer, defendant came from underneath a porch and was arrested. No stolen property was found on defendant.
Sometime during July 19, Calvin Nance received a call from Chicago. He returned to the city and when he went to his store, he found windows boarded, stock missing, the place torn. The value of the missing stock was approximately $400. Nance testified that no one had permission to enter his place of business or remove any article from it.
Defendant testified that on July 19, at about 3:00 a.m., he was at the mouth of an alley, a half block from the Nance store, drinking rum and beer and shooting dice with five men. Defendant gave names of his five companions, saying, without detail, they all lived in the neighborhood. None were called to testify.
In argument to the jury, defendant's counsel called attention to what he said were discrepancies in testimonies of the four policemen who described the Nance store burglary on July 19, 1967. Defense argument stressed lack of credibility of the four officers. He urged the jury to acquit because the testimony of the officers could not support conviction.
In his closing argument, the Assistant State's Attorney attacked defendant's failure to call as witnesses any of his five companions and defended the four policemen. In the course of his argument, the Assistant State's Attorney addressed one of the jurors by his name; and he complained about the interruptions of defense counsel saying that they "have thoroughly screwed up my argument." The court then instructed the jury, giving State's instruction 9 and refusing defendant's instruction 18.
Defendant claimed that on the morning of July 19, 1967, he was not in the Nance store. He swore that when the four policemen came to the scene of the burglary he was drinking rum and beer and shooting dice with five companions at another place a short distance away. This defense was an alibi. In making this defense, and to establish the alibi, defendant injected into the case his activities with potential witnesses during the time of the burglary. His failure to produce any of these potential witnesses was a proper subject of comment by the prosecuting attorney in his argument to the jury. People v. Swift, 319 Ill. 359, 150 N.E. 263; People v. Sanford, 100 Ill. App.2d 101, 241 N.E.2d 485.
Defendant's counsel in arguing to the jury, attacked the credibility of the four policemen who testified for the State. He told the jury that the four witnesses were not believable. He suggested the policemen were not telling the truth. Fairly ...