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People v. Tobin

OCTOBER 12, 1971.




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


Rehearing denied December 9, 1971.

Defendant Tobin was convicted by a jury of the crime of burglary. The court entered judgment upon the verdict and sentenced the defendant to a fifteen to twenty-five year term in the Illinois State Penitentiary. The judgment of the court further provided that the mittimus was to be effective upon release by federal authorities.

The defendant has appealed from that judgment and raised the following issues: (1) The State failed to prove lack of authority to enter the premises; (2) The State failed to prove intent to commit a theft; (3) The court erred in allowing testimony concerning the arrest of Sherri Tobin, her possession of a firearm and evidence concerning defendant's possession of a firearm; (4) The sentence was excessive.

The facts giving rise to this case are as follows: On the night of February 9, 1969, at about 11:00 P.M. the defendant, in the company of Sherri Tobin, Daniel Stout, Michael Hume and Eddie Dunn was in an automobile driven by defendant in the vicinity of the Oliver C. Joseph Automobile Agency in Belleville. Their behavior while driving was observed by James Muir who resided nearby. He stated the car stopped by the agency and the driver, identified as Tobin, jumped out and ran across the street and kicked the agency door. The car in the meantime circled the block and picked Tobin up. The car drove away and Muir next observed four men walking up the street to the agency. Muir recognized one of the four as the man who kicked the door. The four men then entered the agency building by the same door previously kicked. Muir then called the police.

The police arrived and Officers Rettle and Wobbe observed four men walking through the building. Two other policemen arrived. Rettle observed two of the suspects at the back door. He identified himself and ordered them out. They disappeared back inside the building. The police entered the building and found one suspect lying under a car. After turning on the lights they searched the building. The other suspects were found in the basement. The defendant was hiding behind an air compressor when discovered.

After apprehending all four men the police with Mr. Muir's help located the car a few blocks away. Sherri Tobin was found in the car asleep. She was carrying a ".38 caliber snub-nosed revolver, fully loaded, with the serial numbers filed off" in the waist band of her slacks. One of the defendants, Hume, testified for the State and said defendant stated earlier in the evening that they would go to Belleville and "make some money". He also stated that defendant brought a gun into the building.

The evidence also showed that the door jamb of the door kicked by defendant was splintered and the door opened by force.

Additionally, Mr. Oliver P. Joseph testified that the building was owned by and in the possession of Oliver C. Joseph, Inc., a corporation, engaged in the selling of automobiles.

• 1 As to the authority to be in the premises, "* * * the law presumes that the presence in a public building for a purpose inconsistent with the purposes for which the building is open to the public is without authority". (People v. Urban (1971), (Ill. App.2d), 266 N.E.2d 112, 114. Also see People v. Weaver (1968), 41 Ill.2d 434, 243 N.E.2d 245 cert. den. 395 U.S. 959, 89 S.Ct. 2100, 23 L.Ed.2d 746.) Here the defendant (a) had to break open a door to gain admission, (b) at 11:00 P.M., (c) when the building was unlit, and (d) hid in the basement upon arrival of the police. Under these circumstances there was sufficient evidence for the jury to believe that his presence was without authority.

• 2 In regard to the question of intent there is also sufficient circumstantial evidence for the jury to believe that Tobin intended to commit a theft in the building. Intent must ordinarily be proved circumstantially, by inferences drawn from conduct appraised in its factual environment." (People v. Johnson (1963), 28 Ill.2d 441, 192 N.E.2d 864, 866.) The Court in Johnson went on to say:

"* * * We are of the opinion that in the absence of inconsistent circumstances, proof of unlawful breaking and entry into a building which contains personal property that could be the subject of larceny gives rise to an inference that will sustain a conviction of burglary. Like other inferences, this one is grounded in human experience, which justifies the assumption that the unlawful entry was not purposeless, and, in the absence of other proof, indicates theft is the most likely purpose."

• 3 The circumstances of the entry coupled with Hume's testimony that Tobin intended to "make some money" in Belleville is sufficient evidence of intent to commit a theft.

The third alleged error relates to Sherri Tobin's arrest and the question of firearms. It is contended that the evidence of Sherri's arrest is not only irrelevant but introduced solely for the purpose of bringing in evidence of the .38 calibre gun to prejudice the jury. In regard to Tobin's possession of a firearm ...

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