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People v. Umphers

JUNE 11, 1971.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

HENRY UMPHERS, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of St. Clair County; the Hon. HAROLD O. FARMER, Judge, presiding.

MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

After a jury trial defendant was convicted of the crime of burglary and sentenced to a term of not less than five nor more than fifteen years in the penitentiary. Defendant appeals.

Defendant appeals contending that all the elements of burglary were not proven beyond a reasonable doubt, that he was prejudiced when the prosecution left a prejudicial statement unsubstantiated, that one of the prosecution's jury instructions was improperly given and that the sentence was excessive.

The evidence discloses that on the night in question the Trio Oil Company service station in East St. Louis was entered by unauthorized force, a safe tampered with in an apparent attempt to open, and a pay telephone containing approximately $80.00 in coins and was forcibly removed from the wall with a pry bar. Some vending machines, a supply of cigarettes and an assortment of auto accessories and supplies had apparently gone unmolested.

Police had observed a car with one headlight out at approximately 3:30 A.M. about a block from the service station occupied by three persons, all in the front seat. The same car was seen again by the same officers at about 4:30 A.M. as it turned onto the highway from a side street adjacent to the service station and proceeded into National City at a high rate of speed. The officers gave chase in their patrol car using their siren and flashing red light. The chase continued for about one mile before the officers were able to halt and curb the eluding vehicle. The three occupants refused orders to alight until weapons were drawn. The three occupants were identified as the same, and defendant identified as riding on the right front seat next to the door, on both occasions the car was observed. After the car was curbed the officers observed a pay telephone lying on the back seat and a search disclosed a pry bar or crowbar under the front seat. The telephone was later identified as the one in use at the service station and the number still on the telephone was that assigned to the service station. The pry bar contained smudges of green paint matching that on the service station wall from which the telephone had been pried, and indentations in the wall adjacent to the telephone's position corresponded with the configuration of the pry bar.

Defendant testified at the trial that he worked on the evening in question until 11:00 P.M. and afterward went to a tavern in East St. Louis with the other two occupants of the automobile. He stated that he had had nothing to eat and after some drinking he became quite drunk, that he left the tavern, entered the car and went to sleep in the front seat. He recalled nothing else until the police stopped the car in the early hours of the morning and another of the occupants shook him. Defendant further testified that while he was in the front seat of the car he was so drunk he was totally unaware of any acts performed by the other occupants of the car, that he was oblivious to everything until the car was stopped by the police.

In rebuttal to defendant's testimony an officer testified that defendant was awake at the time of his arrest, was not drunk, showed no signs of drinking and appeared to be alert during conversation following the arrest.

Defendant first contends that his drunken condition rendered him incapable of forming the requisite intent to commit burglary and since no one testified to seeing him breaking into or entering the service station all necessary elements of the crime of burglary have not been proven and his conviction should be reversed.

• 1, 2 The fact that the Trio Oil Company service station was burglarized was established by direct and uncontroverted evidence. Defendant's participation in the crime is established circumstantially by his recent, exclusive and unexplained possession of the proceeds of the burglary which in itself gives rise to an inference of guilt which is sufficient to sustain a conviction unless there are other facts and circumstances which leave in the minds of the jury a reasonable doubt of guilt. (People v. Franceschini, 20 Ill.2d 126, 169 N.E.2d 244; People v. Pride, 16 Ill.2d 82, 156 N.E.2d 551; and People v. Bennett, 3 Ill.2d 357, 121 N.E.2d 595.) Although there were three persons in the automobile in which the stolen telephone was found the defendant can nevertheless be said to be in exclusive possession, for joint possession with another can be exclusive possession within the rule. (People v. Wheeler, 5 Ill.2d 474, 126 N.E.2d 228; People v. Phelps, 388 Ill. 618, 58 N.E.2d 615.) Defendant's contention that the State failed to prove the requisite intention upon his part to commit the burglary is without merit. The fact that a larceny was actually committed is evidence that the breaking and entering was accomplished with an intent to commit that offense. People v. Franceschini, supra; People v. McMullen, 400 Ill. 253, 79 N.E.2d 470.

• 3 It was within the jury's province to believe the testimony given by the witnesses for the People and to disregard the testimony by defendant and we will not set their finding aside. People v. Sauber, 68 Ill. App.2d 133, 214 N.E.2d 918.

It is defendant's next contention that reversible error was committed when the prosecution left a prejudicial statement unsubstantiated, thereby leaving unsupported inferences with the jury. On cross-examination of the defendant by the State's Attorney the following colloquy took place:

"Q. Did you tell them you had found that telephone in the street, laying in the street?

A. No, sir.

Q. You didn't tell Officer Croy or Officer Oeth that you found this phone ...


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