Appeal from the Circuit Court of Cook County; the Hon. L.
SHELDON BROWN, Judge, presiding. Judgment affirmed as modified.
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
Defendant Jones and Earnest Harris were jointly indicted on May 17, 1968, for the offense of burglary, in violation of chapter 38, § 19-1, Ill Rev Stats 1967. The Public Defender was appointed counsel for both defendants. When the case came on for trial on August 14, 1968, Harris pleaded guilty, and the trial proceeded as to Jones. A jury found Jones guilty, and he appeals contending (1) the court erred in denying him the right to produce an alibi witness pursuant to a notice given to the State, and (2) the sentence imposed on him is too severe and should be reduced.
The trial record shows that on May 8, 1968, Gervacio Torres was the owner of a grocery store at 1301 West Madison Street, Chicago. When he arrived at the store at about 7:00 a.m. that morning, he found the store burglarized, police there, and groceries, meats and cigarettes taken. The burglars had entered the store through a hole cut in the wall of an adjoining building at 1303 West Madison, used by the Bee Bindery Company as a storeroom.
At about 6:30 a.m. on May 8, Allen Stamps and Doc Little arrived for work at the Bee Bindery plant at 15 South Throop Street. They saw several strange men at the rear of 1301 and going in the back door of 1303. They knew the men were not employees of the Bee Bindery Company, and they flagged a squad car. As they talked to Officer Carlo, Earnest Harris came along carrying a box filled with meats and cigarettes. Officer Carlo arrested Harris and motioned to another police car to go to the rear of the building, where Officer John Harris observed defendant Jones coming down the rear sidewalk carrying another box containing meats and cigarettes. The defendant's shoes and trousers were covered with a white dust. After Jones was arrested the police entered 1303 through the rear door. Immediately beyond the doorway there was a one and one-half by two-feet hole in the plaster wall, and there was plaster dust on the floor. The hole led into the grocery store at 1301.
Officer Harris testified that he arrested defendant Jones at the rear of the building; Officer Carlo testified that he saw the defendant at the rear of the building; and the witness Little stated that a person was arrested in the rear.
Defendant Jones testified and denied any involvement in the offense. He stated that he lived at 1307 West Madison Street with John Brown and his wife Lisa, and was standing on the corner of Madison and Throop waiting for a bus when he was arrested. In the course of his testimony Jones gave various residential addresses, and that the address where he lived was really 1308 and he made a mistake when he said 1307. He said he had plaster powder on his trouser legs because he worked with plastic powder at his place of work.
Earnest Harris, the co-defendant, testified for the defendant and denied knowing Jones and denied that Jones participated in the burglary. He said he saw Jones waiting for a bus.
Conviction statements as to Harris and Jones were admitted in evidence and read to the jury. Jones was found guilty of burglary in October, 1960. Harris had been convicted of auto larceny and auto theft.
Initially considered is defendant's contention that the trial court committed prejudicial error in excluding the testimony of defendant's alibi witness. The record shows that on June 8, 1968, about two months prior to the trial on August 14, 1968, the State filed a notice requesting the defendants to "file and serve upon the prosecuting attorney a notice in writing of his intention to assert the defense of alibi," pursuant to chapter 38, § 114-14, which provides that whenever a defendant proposes to offer in his defense "testimony to establish an alibi, such defendant shall, not less than 5 days before the trial of such cause, file and serve upon the prosecuting attorney a notice in writing of his intention to assert such alibi."
On August 12, 1968, counsel for defendant gave notice to the State that Mr. John Brown of 1305 West Madison "may or may not be called" as a witness for the defense. At the trial on August 14, the court sustained a motion of the State which objected to the testimony of the alibi witness because the notice of the alibi witness was filed too late. The reason assigned by the State was that it did not have ample time to investigate because the address of the alibi witness "happens to be a laundromat and not a residence."
On appeal defendant contends that the court "could have postponed the hearing for another day or two for the State to make its investigation. Instead he was denied the opportunity to produce his alibi witness. The evidence of this witness might well have been of great importance to the defendant and might even have saved him from being convicted. We view the court's action as highly arbitrary and prejudicial to the defendant and resulted in denying the defendant a fair trial and deprived him of his constitutional rights."
Defendant asserts that a short extension was feasible and "in line with the practice in this case of continuing the case at least 7 times before it came to trial on August 14. . . . After granting all these continuances one more would not have in any manner interfered with the administration of Justice. Not one of the 7 continuances was requested by the Defendant."
On this point defendant's authorities include: Brady v. Maryland, 373 U.S. 83 (1963), where the court said (p 87):
"We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective ...