Appeal from the Circuit Court of Macoupin County; the Hon.
PAUL C. VERTICCHIO, Judge, presiding. Affirmed.
RICHARD MILLS, J., DELIVERED THE OPINION OF THE COURT.
Brown was indicted in separate counts for theft and criminal damage to property, both of the felony rank. A jury of peers adjudged him guilty on both counts. He was granted three years' probation, with nine months at the State Farm as a condition thereof.
This cabal had its inception when some 460 pounds of #9 bare copper wire were cut down from the communication lines of the Chicago, Burlington & Quincy Railroad in Macoupin County. The scenario occurs on four days in February, 1968, being a Friday, Saturday, Sunday and Monday, February 2, 3, 4 and 5. The actors are Bradford, Davis, Cantrell and Brown. Upon the trial, the plot unfolded thusly:
On Friday night, the quartette left Kennett, Missouri, in Brown's white Pontiac and drove to Chicago. Brown purchased a black Dodge convertible on Saturday in Chicago in the company of the other three, and then they all drove southward in both automobiles (two in each car) until they stopped in the middle of the afternoon on Saturday at a truck stop at Bloomington, Illinois. Brown gave the others $5 and instructed them to purchase some wire cutting pliers, which they did. During the early evening of Saturday, all four drove in the black Dodge over to Pekin, then later returned to the Bloomington truck stop where they stayed overnight using the free bunk quarters for truckers. The next morning, Sunday, they drove both cars on south to the general area of the crimes and searched for wires to cut. They parked the black Dodge at the junction of U.S. Route 66 and Illinois Route 48, a few miles north of Litchfield, and all rode in the white Pontiac the few miles to where the C B & Q tracks cross State Route 108. Bradford served as lookout while Brown, Davis, and Cantrell proceeded to cut down the copper wire from the C B & Q lines. While the criminal acts were being perpetrated, law officers appeared at the scene. Brown sounded the alarm and the covey flushed. Bradford and Davis fled in the white Pontiac and were later apprehended after a high-speed chase. Brown and Cantrell ran off into the darkness and made their way back on foot the distance of about four miles to where the black Dodge had been left. Brown and Cantrell then drove back to Kennett, Missouri, during the early hours of Monday morning.
Brown interposed a defense of alibi, maintaining that: Cantrell was not with the other three on the trip; that he (Brown) went out with two girls in Bloomington on Saturday evening, did not drive to Pekin, left the truck stop after 11:30 p.m. on Saturday evening, drove to Missouri and arrived at Kennett at approximately 9:00 a.m. Sunday morning. After the jury verdict of guilty on both charges, Brown filed a post-trial motion for a new trial based on newly discovered evidence, which was denied. And now on this appeal Brown contends that (a) the trial court erred in denying a new trial because of newly discovered evidence, (b) that the value of the copper wire was not proved, and (c) that he was not proved guilty beyond a reasonable doubt. On the other hand, the People's theory is: Brown did not exercise reasonable diligence in discovering the "new" evidence, which was merely cumulative anyway; the value was adequately proved; and defendant was proved guilty beyond a reasonable doubt.
First of all, let us survey the motion for new trial based upon newly discovered evidence. To support the motion, Brown submitted the testimony of Harvey Warren (an attendant at the truck stop in Bloomington), a payroll sheet from the truck stop, the statement of Carol Ward (one of the girls Brown said he had a date with on Saturday night), and a gasoline purchase receipt from "Jim" (at Uniontown Oil Co., Uniontown, Missouri), as well as affidavits of the defendant and his counsel.
Warren directly contradicted prosecution's trial witness, Robinson, who was also an attendant who worked at the Bloomington truck stop. Warren maintained that he, not Robinson, worked the night shift of Saturday-Sunday, and that he last saw Brown between 10:00 and midnight Saturday. Now, both Brown and his counsel were aware of the existence and identity of this possible witness prior to trial, and even on the night before the jury was selected defense counsel talked with Warren on the telephone. At no time was Warren subpoenaed to testify on behalf of the defense. As a matter of fact, defense maintains that although counsel talked with Warren, they did not know where to locate him. The following appears in the report of proceedings on the motion for new trial:
MR. DOBBS: "Mr. Warren, I talked to you on the phone in July. You did tell me that you didn't want to get involved in this, didn't you?"
WITNESS: "That's correct. I don't ."
MR. DOBBS: "The only information you had would be that Hubert left the station while you were still there?"
WITNESS: "That's all I could say, yes."
MR. DOBBS: "Do you recall whether or not I asked you for your address?"
WITNESS: "I don't remember that you asked or that I refused to give it to you. I told Mr. Schwartz because I hadn't refused to get it give it to anybody. I don't remember you asking for it. I don't remember refusing to give it to you."
MR. DOBBS: "I think that's all."