APPEAL from the Circuit Court of Du Page County; the Hon. L.L.
RECHENMACHER, Judge, presiding.
MR. PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
The defendant, Roger C. Slaughter, a/k/a Clarence Slaughter, after a jury trial, was convicted of Burglary alleged in the indictment to have occurred on or about June 11th, 1969.
He urges that the evidence against him was wholly circumstantial and that he was not proven guilty beyond a reasonable doubt. He also claims that trial errors deprived him of a fair trial.
The charge against defendant arose as an aftermath of the service of a warrant on one Demaris Sears who lived with Slaughter. The police went to their apartment on June 17th, 1969 with a warrant for Demaris Sears' arrest on a check forgery charge. After Demaris was taken away, defendant stated that he wanted to go to the police station to be with her but would take a shower first. While defendant was in the bathroom an officer heard the noise of the top of the toilet tank moving, and upon examination of the water tank found seven payroll checks which, upon investigation, were shown to be part of some 83 checks reported missing from the Fireside Engineering Company.
There was testimony that defendant had previously been employed by the Fireside Engineering Company as a clean-up and maintenance man for a period of six months terminating in January of 1969; and that earlier on the day of the alleged June 11th burglary, defendant had been at the Fireside office to discuss painting of the building. Neither Korona, who was the president of the Fireside Engineering Company, nor the bookkeeper, Lavergne Blindt, were able to establish the date the checks were taken. Mrs. Blindt testified that they first looked for missing checks following a call from a police officer some days after June 11th. There had been a prior break-in on May 21st, as well as two earlier break-ins. No investigation had been made after prior break-ins to see if checks were missing. The blank payroll checks were kept in an office cabinet, loosely, in a box supplied by the bank with the printed checks. The missing checks began with those numbering in the "8400" series with intermittent numbers being found missing in that series and in the "9000" numbered series. Mrs. Blindt testified that the checks being written by the company at the time of the June break-in were "Say around 8400 some". While Mrs. Blindt testified that the checks were used in numerical order and said "* * * and we keep a record", there was no further explanation of the record kept nor was any such document offered.
There was testimony that the checks recovered from the water tank (People's Collective Exhibit #1) were in the "9000" series.
A check numbered 9040 dated June 12th, 1969, was introduced as People's Exhibit #2 supported by testimony that it had been cashed by one Kathleen Louden, the sister of the defendant, at a grocery store in the neighborhood of defendant's apartment. The testimony of the store clerk was that she did not know whether it had been cashed before or after the date of the burglary.
Demaris Sears testified that she was given the checks comprising People's Group Exhibit #1 on June 17th, 1969, by defendant's brother-in-law, Jim Louden, for the purpose of typing names thereon. She also testified that she cashed a Fireside Company check (People's Exhibit #5, Check 9053) on June 14th, 1969, and that she had received it earlier that morning from Jim Louden. She said that the defendant, to the best of her knowledge, did not know that Jim Louden had given her the checks.
On cross-examination of one of the police officers, defendant's counsel identified a copy of a check marked Defendant's Exhibit 2 for identification as Check No. 8472. On re-direct examination the State identified the check as People's Exhibit #3 and established that it was dated May 22nd, 1969. The check bore a Clearing House stamp of June 10, 1969.
On this testimony, defendant argues that it is mere conjecture whether People's Group Exhibit #1 was taken in the June 11th burglary for which the defendant was indicted. He argues that the fact that another stolen Fireside Engineering check No. 8472 was cashed by some other person prior to June 11th, 1969, and had a Clearing House stamp with date of June 10th on its back, clearly established that the check was in circulation before the June 11th burglary. Thus, defendant argues that the State's assumption that the checks found in defendant's possession were taken at the June 11th burglary is not credible and that it is a reasonable hypothesis that whoever took Check 8472 also took those included in People's Group Exhibit #1. Defendant also argues that the unrefuted testimony of Demaris Sears supports this view.
• 1 The jury was not required to believe the testimony of Demaris Sears as to the origin of the checks and apparently did not. However, a more serious question, we believe, is whether the possession of the checks (Plaintiff's Exhibit #1) by the defendant under the circumstances presented was sufficient to prove beyond a reasonable doubt that defendant committed the burglary for which he was charged. It is a familiar rule that exclusive possession of recently stolen goods, unexplained, is evidence of larceny; and if at the time the articles were stolen burglary was committed, that such possession is also evidence of burglary. (The People v. Hein (1924), 315 Ill. 76, 81.) In almost every case which has come to our attention in which this rule has been applied, there was no doubt that the property had been taken at the time of a particular burglary charged. In this case there was evidence of several previous break-ins and there was no satisfactory proof that the particular items were taken at the time of the June 11th burglary.
• 2 We have found a somewhat similar case, People v. Moore (1966), 76 Ill. App.2d 326, 331. Moore argued that there had been burglaries on other occasions so that his possession of stolen checks was not sufficient proof that they were taken in the burglary of which he was convicted. In affirming the conviction, the court noted that there was no evidence that checks had been taken in the other break-ins and that the owner had testified that the particular checks found in defendant's possession were the same as those taken in the burglary charged. This last finding distinguishes the cases. Here, neither the owner nor his bookkeeper could state that the checks were taken in the June 11th burglary. Defendant's possession of the checks may well have been relevant evidence of his involvement in some crime, but the wholly circumstantial evidence was insufficient to prove that the particular crime charged had been committed by defendant. The entire record leaves us with a serious doubt that the defendant was proven guilty of the June 11th burglary beyond a reasonable doubt and the conviction cannot stand. (See The People v. Hooper (1936), 364 Ill. 320, 325; The People v. Johnson (1964), 31 Ill.2d 321, 324.) The judgment is reversed. See The People v. Butler (1963), 28 Ill.2d 88, 92.
ABRAHAMSON and MORAN, JJ., ...