APPEAL from the Circuit Court of St. Clair County; the Hon.
JAMES W. GRAY, Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
James Jerry Hayes and J.B. Hayes and Douglas K. Over were indicted for theft in "that they knowingly obtained control over an automobile having a value exceeding One Hundred Fifty Dollars ($150.00), the property of Barbara Tyree, with intent to deprive the said Barbara Tyree permanently of the use and benefit of said property, in violation of Paragraph 16-1, Chapter 38, Illinois Revised Statutes."
The indictment was dismissed as to Douglas K. Over prior to trial. After a trial by jury defendants J.B. Hayes and James Jerry Hayes were found guilty. J.B. Hayes received a penitentiary sentence of not less than five years nor more than ten years, and James Jerry Hayes not less than two years nor more than ten years. The co-defendants Hayes prosecute their separate appeals to this court. As a matter of convenience these cases were heard and are being decided together.
James Jerry Hayes relies upon four grounds:
(a) That the indictment was insufficient to comply with the statute and his conviction thereon cannot stand;
(b) That the State did not prove him guilty beyond a reasonable doubt for want of sufficient proof of possession;
(c) There was inadequate proof that the value of the property allegedly taken was in excess of $150.00; and
(d) Error was committed when he was sentenced without a probation report.
J.B. Hayes relies upon the first three grounds above and he further argues:
(1) That the State's proof was inadequate to prove that the alleged stolen automobile was the automobile in the defendant's possession;
(2) That the unexplained possession of recently stolen goods violates the Fifth Amendment right to remain silent; and
(3) That the State erred in a comment in argument and in the giving of an instruction.
The evidence established that on January 3, 1969, Barbara Tyree owned a red 1967 Camaro automobile which was discovered missing the following morning from in front of her home in St. Louis, Missouri. Approximately two years before the Tyrees had purchased the automobile for $2,700.00 and after the automobile was missing, they settled with their insurance company for $1,000.00 plus the balance of the outstanding loan on the automobile.
Sixteen days later a state patrolman stopped a tow-truck being driven by Douglas K. Over, with defendants J.B. Hayes and James Jerry Hayes as passengers. The tow-truck was pulling a red Camaro frame with the rear tires intact, which was subsequently identified by another state patrolman as bearing a hidden identification number, the same as that registered to Mrs. Tyree. The three occupants of the tow-truck were arrested at the scene and charged with illegal transportation of alcoholic liquor, based upon an open bottle of liquor found in the truck. The arresting officer testified that he did not receive any explanation from the defendants as to where the car came from in response to his direct question.
The tow-truck driver, the former co-defendant Over, testifying as a State's witness, said that J.B. Hayes asked him to tow this automobile for a consideration and that he, with J.B. Hayes and James Jerry Hayes, went to James Jerry Hayes' house and picked up the Camaro frame and that the three of them were riding along when the state patrolman pulled them over. He told the state patrolman on the scene that someone had called him on the phone and asked him to tow the car. The ...