Appeal from the Circuit Court of Sangamon County; the Hon.
CREEL DOUGLASS, Judge, presiding. Affirmed.
RICHARD MILLS, J., DELIVERED THE OPINION OF THE COURT.
Rehearing denied October 15, 1970.
At approximately 4:00 a.m. one morning, the attendant at a service station in Springfield observed an automobile in the station area, saw the defendant get out of the car, proceed to open a vending machine at the station, then empty the coin box into his right-hand coat pocket. The attendant noticed a female passenger in the automobile and also observed the license number of the car as the defendant drove away. He immediately called the police, reported the incident and gave a description of the automobile.
The desk sergeant instantly put out a call to all cars, and within a few minutes defendant's automobile was apprehended by the police several blocks from the service station. The police then ordered the defendant to drive his automobile to the downtown police station, preceded by one police car and followed by another. Officer Bryant was in the squad car behind and noticed defendant take his hands off the steering wheel and make movements to shove something under the front seat. The defendant's car was parked in front of the police station and he and his female companion, Carlene Rogers, were taken inside and searched. Oliver had $13.15 in change on his person, and the girl had over $30 in change in her purse.
During the booking process, Miss Rogers excused herself and was escorted to the ladies' room by a female attendant. After her charge utilized the facilities, the matron heard a noise in a wastepaper can near Miss Rogers that sounded like metal hitting against metal. Upon checking the trash container, the matron discovered a ring of keys, one of which it later developed would open the vending machine at the station in question.
Meanwhile, back on the street, also during the booking process, Officer Bryant took his flashlight and shined it through the window into the defendant's automobile. Sticking out from underneath the driver's seat was a portion of a gun barrel. He then opened the car door, and as he pulled the barrel of the pistol out from under the seat, a ring of keys also came out.
Oliver was subsequently indicted for possession of burglary tools and misdemeanor theft. A jury found him guilty on both counts, probation was denied and he was sentenced to the penitentiary for 1-2 years. The trial court had denied Oliver's motion for a new trial which was grounded essentially upon the five points relied upon in this appeal. We now proceed to consider in like order the errors urged.
Point One: Is a "vending machine" a "depository" within the animus of the Criminal Code? (Ill Rev Stats 1967, c 38, § 19-2). The pertinent statutory language reads as follows:
"§ 19-2. Possession of Burglary Tools.) Whoever possesses any key, tool, instrument, device, or any explosive, suitable for use in breaking into a building, housetrailer, watercraft, aircraft, motor vehicle as defined in the Illinois Motor Vehicle Law, approved July 11, 1957, as amended, railroad car, or any depository designed for the safekeeping of property, or any part thereof, with intent to enter any such place and with intent to commit therein a felony or theft shall be imprisoned in the penitentiary from one to 2 years." (The salient phrase has been emphasized.)
Oliver argues that we are impaled on the horns of a dilemma: since the General Assembly failed to specifically include vending machines among the classes of objects protected by that section, the "plain meaning" excludes vending machines; on the other hand, if we try to include vending machines under "depository," we are also effectively throttled because a penal statute must be construed strictly in favor of the accused, and such attempted inclusion would traverse the literal meaning of "depository," which is a place for the keeping of a "deposit," which in turn is a "naked bailment of goods to be kept for the depositor without reward." Black's Law Dictionary, Revised Fourth Edition (1968), pp 526-528.
Let us dispose of the left horn first: The sine qua non of defendant's argument is that since "vending machines" were well known to the General Assembly at the time of enactment and not specifically included within the protected classes of section 19-2, the doctrine expressio unius est exclusio alterius applies. Mr. Oliver is mistaken. The doctrine that applies is expressio eorum quae tacite insunt nihil operatur.
The other horn: Defendant cites People v. Kirkrand, 397 Ill. 588, 74 N.E.2d 813, for the authority that a criminal statute must be construed strictly in favor of the accused. We find no quarrel with this maxim, but point out that Kirkrand continues to say: "The object, however, in construing criminal and penal, as well as all other statutes, is to ascertain the legislative intent. The rules as to strict or literal construction are of value only as assisting in finding the real meaning of the statute." (P 815.) As for the "bailment" argument, we view it as void of virtue. The popular definition of "depository" is "a place where anything is lodged for safekeeping." Webster's Dictionary, Unabridged, Second Edition. Ergo, a reading of section 19-2 in such context makes it beyond dispute that the legislature intended a vending machine be included in the protected miscellany class. It would seem both a travesty on common sense and a prostitution of logic to hold otherwise.
Furthermore, we conclude that this question has been laid to rest by the Illinois Supreme Court in People v. Weaver, 41 Ill.2d 434, 243 N.E.2d 245. There, Weaver was prosecuted for this same offense based upon possession of a key that fit the vending machine burglarized. After reciting the visceral portions of section 19-2, the court concluded:
"Again we find that the State's evidence was sufficient to justify the jury in concluding that all elements of the statutory offense had been established beyond a reasonable doubt. A key had been used to open the door of the vending machine at which the defendant was standing. A key that opened the door of that machine was found in the police car where the defendant had been squirming to the extent of putting one foot on the dashboard. The proof went further, and ...