Appeal from the Circuit Court of Cook County; the Hon. WILLIAM
S. WHITE, Judge, presiding. Judgment affirmed.
MR. JUSTICE LYONS DELIVERED THE OPINION OF THE COURT.
Billy T. Scott was convicted, following a jury trial, of the offense of burglary (Ill Rev Stats (1965), c 38, § 19-1). Judgment was entered on the verdict and he was sentenced to a term of not less than four nor more than eight years in the Illinois State Penitentiary. In this appeal the defendant contends that the trial court erred: (1) in denying his motion for a directed verdict at the close of the State's evidence; (2) in denying his motions to strike answers of a State's witness alleged to be prejudicial; and (3) in instructing the jury.
The burglarized premises were occupied by, and the items taken were the property of, the Lawrence C. Brady Printing Company. Lawrence Brady, Jr., manager of the company, testified for the prosecution. He arrived at work at approximately 7:40 on the morning of December 30, 1966, and discovered that the premises had been burglarized. Entry had been effected by forcing the rear doors, the outer door being constructed of steel and the inner of wood. The office, located in the front of the printing shop, was in a state of disarray. Missing from the office were a check protector, electric typewriter, adding machine, and a number of blank company payroll checks. The payroll checks had been kept in an unlocked drawer in witness' desk. Those discovered to be missing were number 686 through 1119, inclusive. Other payroll checks, bearing both lower and higher numbers, were strewn about the office.
State's exhibits two through five were identified by Mr. Brady as payroll checks of the Brady Printing Company and bore the numbers 742, 743, 750 and 740. Mr. Brady also testified that the signatures appearing as those of the drawer of the checks were not his, nor were they the signatures of his father, owner of the enterprise. Finally, Mr. Brady testified that the designated payee on each of the checks marked as exhibits, Thomas A. Boyd, is a person unknown to him and he did not authorize anyone to write the checks.
On cross-examination Mr. Brady testified as follows: The company printed its own payroll checks. After printing and a determination that they are in numerical order, they are packaged and kept in his desk to be used as needed. When a package is opened no additional effort is made to ascertain if all the checks are in the package. Mr. Brady additionally testified that he did not know to a certainty that the checks marked as exhibits two through five were in his desk when he left work on December 29, 1966, and therefore he did not know to a certainty that they were taken in the burglary which took place between the time he left the shop on December 29, and returned on December 30, 1966.
Other testimony was heard establishing defendant's possession of the exhibits following the date of the burglary. That evidence, except insofar as set out below, is not relevant to the issues raised in this appeal.
In support of his contention that the trial court erred in denying his motion for a directed verdict, defendant argues that the testimony of Mr. Brady, the only witness to testify regarding the ownership and unlawful taking of the checks in question, did not conclusively establish that they were taken in the burglary with which he was charged. We agree. However, the evidence presented did establish the fact of a burglary, that other items were missing from the office in which the checks were customarily kept, and that other checks bearing numbers both lower and higher than those traced to defendant's possession were strewn about the office. We believe that the evidence presented was sufficient to establish a basis from which the jury, as triers of fact, could reasonably conclude that the checks in question were taken in the burglary for which defendant stood accused. It follows that the evidence presented by the State was sufficient to support a verdict of guilty and therefore the trial court was correct in denying defendant's motion for a directed verdict (Ill Rev Stats (1965), c 38, § 115-4(k)).
Defendant next complains of the trial court's denial of his motions to strike two answers given by Sergeant William Kearney, called by the State in rebuttal. Sylvester Smith, a co-defendant called as a witness for the defense, had testified that he had never had a conversation with Sergeant Kearney in which he stated that he had received a Brady Printing Company payroll check in payment for two suits of clothes sold to the defendant. When called in rebuttal, Sergeant Kearney testified that he had arrested Smith in connection with the instant case after he, Smith, had cashed one of the checks discovered to be missing following the burglary. The officer further testified that when he questioned Smith concerning his acquisition of the check which he had cashed, Smith stated that he had received it in payment for two suits of clothing which he had sold to a person known to him only as "Billy the pimp." (The witness later testified that Smith subsequently identified defendant by name and as the person referred to above.) The defendant objected to the quoted portion of the answer and moved that it be stricken. The motion was denied and the jury immediately instructed as follows:
"There was an objection to the phrase: `Billy the pimp.' The court has overruled the objection and the answer may stand. But the jury is advised that it is standing merely as evidence of a conversation that this officer testifies he has (sic). It has no probative value whatsoever as to any activity that this Billy, that he refers to, might have been engaged in."
In support of his contention that denial of his motion to strike constitutes reversible error, defendant argues that the statement characterized him as an evil person and made reference to a misdemeanor, which would not have been properly admitted even for the purpose of impeachment had defendant elected to testify and had his commission of such an offense been subject to proof by competent evidence. The total effect of the characterization, it is asserted, served to so prejudice the jury against the defendant as to deny him a fair trial. We agree that such a characterization is potentially highly prejudicial to a defendant. It must be noted however, that here it was not the witness who made the characterization. He merely related the substance of a conversation in which the characterization was made. Moreover, the limiting instruction promptly given by the trial court was sufficient to remove the potential prejudice from becoming manifest.
Defendant's second allegation of error with respect to the trial court's denial of his motion to strike an answer of Sergeant Kearney arises from the following testimony:
Q. "Now, Officer, I'll ask you to look at the defendant in this cause. Have you ever seen this man before this trial?
A. "Yes. I have seen him almost ...