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People v. Smith

NOVEMBER 18, 1970.




APPEAL from the Circuit Court of Rock Island County; the Hon. JOHN L. POOLE, Judge, presiding.


Defendant, Alton Smith, was found guilty of robbery by a jury and sentenced to a term of from five to fifteen years in the penitentiary in the Circuit Court of Rock Island County.

On the afternoon of August 21, 1969, Harvey Mead went to a tavern in Rock Island. Earlier in the day he had borrowed two hundred dollars from a credit union and at the time he went into the tavern he had nine twenty dollar bills and some other currency in his wallet. Mead took a seat at the bar next to the defendant, ordered a drink and struck up a conversation with defendant, a person with whom Mead was not previously acquainted. Mead paid for the drink with one of the twenty dollar bills and in so doing defendant could have seen that there was other currency in Mead's wallet.

A short time later Mead and defendant went to the rear of the tavern and played a game of pool. Before starting on a second game Mead excused himself to go to the restroom. As he was going through the restroom door he glanced behind him and saw defendant about three steps behind him also approaching the restroom. Just after entering the restroom, Mead's arm was seized, he was slugged across the face and became dazed or partly conscious. When Mead regained his facilities he saw Smith across the room taking some bills out of his (Mead's) wallet. The police were called and after Mead related the events, defendant Smith was arrested and searched. The police discovered eight twenty dollar bills in defendant's pocket together with other currency.

Defendant was charged with robbery and found guilty by the jury and it is from such judgment of conviction and sentence imposed pursuant thereto that defendant has appealed. Defendant argues first the trial court erred in refusing to give the full IPI-Criminal 3.02 Instruction in accord with the recommendation of the drafters of such instruction.

At the request of the State, IPI-Criminal 3.02 was given as follows, "Circumstantial evidence is the proof of facts or circumstances which give rise to a reasonable inference of other facts which tend to show the guilt or innocence of the defendant. Circumstantial evidence should be considered by you together with all the other evidence in the case in arriving at a verdict.". Defendant objected to the instruction because it did not include the supplemental statement recommended by the pattern instruction drafters. Defendant tendered an instruction which in addition to that part of 3.02 quoted before included the following, "You should not find the defendant guilty unless the facts and circumstances proved exclude every resonable theory of innocence.". According to the drafters the instruction should be supplemented by including the additional material when the only evidence is circumstantial.

The only issue regarding such instruction raised by defendant in the trial court and on this appeal in his insistence that the only evidence was circumstantial. We do not agree with defendant.

• 1 Defendant concedes that Mead testified that after recovering his senses he saw the defendant taking bills from his (Mead's) wallet and that this is direct evidence. Such testimony can not be ignored as defendant suggests ought to be the case merely because defendant was somewhat dazed at the time. Furthermore Mead testified that after his arm was grabbed he saw that it was the defendant Smith just before he was slugged. Such evidence was direct evidence. The discovery of the twenty dollar bills in defendant's pocket and the absence of other persons in the area did constitute circumstantial evidence. Such circumstantial evidence was not the sole evidence presented at the hearing. The introduction of some direct evidence tending to prove defendant's guilt distinguishes the case at bar from that of People v. Suarez, 96 Ill. App.2d 153, 237 N.E.2d 841.

• 2 Defendant next argued that a photograph of Mead taken on the day following the incident involved was erroneously admitted by the trial court. The photograph showed Mead's face and its swollen condition resulting from the blows of the previous day. Such photograph cannot in our opinion be considered inflammatory and hence prejudicially erroneous as in People v. Jackson, 9 Ill.2d 484, 138 N.E.2d 528. Force was an essential element of the State's case and the photograph had a tendency to prove such element even though as the hearing developed whether force had or had not been used was not a contested issue. We believe the photograph was properly admitted as an exhibit. People v. Murdock, 39 Ill.2d 553, 237 N.E.2d 442.

This brings us to defendant's argument that the discovery and seizure of the eight twenty dollar bills was the result of an illegal search and seizure and such bills should not have been received as exhibits.

After the police officers arrived in the tavern and had heard Mead's story apparently some disturbance took place involving defendant Smith. As a consequence he was arrested by the officers for disturbing the peace and searched, according to the officers, to ascertain whether he had any weapons on him. The search included a search of defendant's pockets and the bills were discovered in his pocket. Defendant was then taken to the police station and charged with robbery.

Defendant admits that his arrest was lawful but argues that a search incident to a lawful arrest must be reasonable and a search of his pockets was not reasonable.

Par. 108-1, ch. 38, Ill. Rev. Stat. 1969, provides, "When a lawful arrest is effected a peace officer may reasonably search the person arrested and the area within such person's immediate presence for the purpose of: (a) Protecting the officer from attack; or (b) Preventing the person from escaping; or (c) Discovering the fruits of the crime; or (d) Discovering any instruments, articles or things which may have been used in the commission of, or which may constitue evidence of, an offense.".

• 3 We believe that under the authority of the Statute the search was reasonable. People v. McKnight, 39 Ill.2d 577, N.E.2d 488, see Chimmel v. Calif., 23 L.Ed.2d 685, 89 S.Ct. 2034 for an extended discussion of the subject. We are aware of no cases and no authority has been cited by defendant indicating that a search of the person for weapons by a police officer is limited to "patting down" or "frisking" the subject. Defendant concedes the legality of his arrest for disturbing the peace but it is equally clear that defendant was taken into custody because of his alleged robbery of Mead. In this respect a search is equally reasonable for the purpose of discovering the fruits of the ...

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