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People v. Childress

OCTOBER 27, 1971.




APPEAL from the Circuit Court of Cook County; the Hon. JAMES N. SULLIVAN, Judge, presiding. MR. JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:

This is an appeal from a judgment of the circuit court of Cook County finding defendant guilty of possessing stolen goods. The case was tried by the court without a jury, and the defendant sentenced to one year's probation.

On November 12, 1969, a Thom McAn shoe store at 147th and Western Avenue in Dixmoor, Illinois, was burglarized. Police officers went to the scene at 11:38 P.M. They questioned the people in the vicinity and then procured a search warrant to search a 1962 Chevrolet car, license number CL 3014, registered to Richard Childress, and also the house in which he lived at 2022 West 142nd Street, Dixmoor. The warrant alleged the burglary at the Thom McAn store, information from a reliable informant, and also that a car with the above license number had been spotted. The warrant specified the things to be seized as shoes, purses and socks.

At 2:20 A.M., the police went to the defendant's address and searched the house but found nothing. However, in the car they found several shoes. An officer testified the car was locked, but he was able to see them through the car windows, and entrance was gained to the car when the keys were found on a table in the house. There were three shoes on the floor of the front seat, one shoe on the floor of the rear seat, and one was on the back seat.

Alan Holmes, the manager of the shoe store, testified the shoes were from his store. He was able to identify them because of the "label and handwriting, and the way we do it."

The defendant testified in his own defense that he was parked behind the Curve Lounge, which is adjacent to the Thom McAn store, and that he was accompanied by four friends. He stated they all sat in his car and drank some wine they had bought, and then he and one of the others went into the lounge leaving the other three alone in the car. He denied knowledge of the crime and stated he did not notice the shos in his car as he drove home.

The defendant contends it was error for the judge to fail to suppress the evidence uncovered pursuant to the search warrant because the warrant did not explain the reason the police went to the defendant's house, did not furnish facts to support its conclusion and did not describe with particularity the articles to be seized. It is not necessary to discuss the validity of the warrant because the goods were seized lawfully pursuant to the "plain view" doctrine of Harris v. United States (1967), 390 U.S. 234, and People v. Wright (1968), 41 Ill.2d 170. In Harris, the court held the "objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence." In Wright, a policeman had secured a search warrant for the second floor apartment of a two-story building. During the surveillance of the building it was discovered that known policy runners were entering the first floor apartment. One of the policemen went to the rear of the building, which had no yard, and was able to see gambling operations on the first floor through partially open curtains. The court held that evidence obtained on a search of the first floor apartment was admissible because the officer had probably cause to believe a crime was taking place when he looked into the window, and he did not trespass while doing so.

• 1 In the instant case the articles seized were taken from a car parked on a street after being viewed by a policeman who was not trespassing. The officer had probable cause to believe a crime had taken place because he had investigated the break-in of the Thom McAn store, and the shoes he observed in the car appeared to be of the same type as those he saw in the store. "Whether probable cause exists depends upon the totality of the facts and circumstances," (People v. McCrimmon (1967), 37 Ill.2d 40), and the conclusions drawn by the arresting officer should be judged upon "factual and practical considerations of everyday life, on which reasonable and prudent men, not legal technicians act." People v. Hester (1968), 39 Ill.2d 489; Brinegar v. United States (1948), 338 U.S. 160.

• 2 The defendant next complains that the ownership of the shoes was not proven beyond a reasonable doubt and contends the complaint is faulty for failing to allege that the Thom McAn shoe store was a corporation. In his brief the defendant asserts the manager of the store could not state whether the shoes had come from his store. This is not supported by the record. Alan Holmes, the manager of the store, stated he could identify the labels taped to the shoes "by the label and handwriting, and the way we do it."

In People v. Whittaker (1970), 45 Ill.2d 491, the Supreme Court of Illinois discussed the necessity of alleging ownership rather than mere occupancy:

"It is true that an allegation of ownership was once required (see People v. Picard, 284 Ill. 588), but we put an end to this `empty formality' in People v. Stewart, 23 Ill.2d 161, 168, and reaffirmed our position in People v. Peck, 29 Ill.2d 480, 484. Accordingly, an indictment alleging occupancy or possession of the burglarized premises in a named person is sufficient."

The information in the complaint is sufficient to establish ownership in someone other than the defendant.

Furthermore, the record contains sufficient information for the trier of fact to conclude that Thom McAn is a corporation. In People v. McGuire (1966), 35 Ill.2d 219, the court stated:

"We believe that the time has come to re-evaluate the standards of proof established by earlier decisions. In other States, the ordinary rule is that the existence of a corporation may be shown by direct parol evidence. * * * We believe that these rulings are inconsistent `with the spirit that has substituted, in criminal procedure as well as in civil, an interest in the significant rights of the litigants for a ritualistic concern with the empty formalities.' (People v. Hill, 17 Ill.2d 112, 119.) We therefore hold that in the absence of evidence to the contrary, the existence of a corporation may be shown by the direct oral testimony of a person with knowledge of that fact."

In a recent case, People v. Nelson (1970), 124 Ill. App.2d 280, the court held that corporate ownership could be determined from such references as "Sears," "Sears and Roebuck," "Sears Corporation," "Sears warehouse," and several ...

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