APPEAL from the Circuit Court of Kane County; the Hon. JOHN S.
PETERSEN, Judge, presiding.
MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
Defendant was indicted for intimidation and attempt (theft), found guilty in a jury trial, convicted and sentenced to a term of not less than one year nor more than five years in the penitentiary.
His appeal was originally filed in the Supreme Court which ordered it transferred to this court. Three issues are raised, namely: (1) that the evidence was insufficient to prove defendant's guilt beyond a reasonable doubt; (2) that it was error to admit into evidence a gun found in defendant's automobile; and (3) that the prosecutor abridged defendant's right to testify or decline to testify.
We first review the evidence briefly in connection with defendant's claim that it was insufficient to support a conviction. George Neumark, a former mayor of St. Charles, Illinois, and owner of several cleaning and laundering plants in the area received a series of threatening phone calls. The caller told him that due to a city action the caller's father had lost $11,400, had passed away grieving about it, and that Neumark was to get that amount and would be told what to do with it. Otherwise, the caller said, he would bomb Neumark's place of business and harm his two sons.
Neumark informed the police who placed a recorder on his phone and were present on the night of September 16, 1969, when instructions were given to place the money in a bag and drop it at a particular sign indicating a sharp curve in Tyler Road, a rural location without lighting. The police had prepared a packet of currency in excess of $400 and stage money which was placed in a brown paper bag. Neumark drove to the described location with two detectives in the back of his car, passed it once and returned on the opposite side of the street. He walked across the road, placed the back on the grass between the paved road and a fenced cornfield, and then drove home. Meanwhile, the detectives had alighted from the opposite door and secluded themselves in the cornfield directly across the road from the paper bag containing the money.
Various members of Babic's family had worked for the victim, and Neumark knew Richard Babic, having employed him in his laundry for seven months prior to July, 1964. He recognized that the calls were made by the same person, but did not recognize the voice as Babic's. Some of the calls were traced to phones in public places in the area.
A police officer sitting in a squad car parked some distance away from the prearranged drop spot observed a car of the same description as defendant's travel north on Tyler Road, and then five or six minutes later, travel west on another street and turn back south on Tyler Road. The men watching the bag at the side of the road saw the car pass going north, and return two or three minutes later going south. It drove about 50 feet past the spot, braked, came to a screeching halt, and backed up. The driver, alone in the car, was seen looking to the right and to the left before and after he got out of the car. Babic walked over to the bag, picked it up and was carrying it back to his car without having opened it or looked into it when he was arrested.
Babic gave an officer permission to drive his car to the station, but was not asked for permission to search it. Within ten minutes after driving it into an enclosed area at the police station, the officer testified he again opened the door and saw a gun lying at the end of an arm rest folded down upon the middle of the front seat.
Various members of Babic's family testified he had not made phone calls at the time specified in the indictments, several occasions being family birthday celebrations. Babic had a radio capable of receiving police calls but did not have it with him on the night of his arrest. His wife said she had the gun in the car that day for her own protection while visiting her mother in an integrated neighborhood and had not told her husband about it. They were in financial difficulties during August and September, 1969, and threatened with a mortgage foreclosure.
Ray Summers, a St. Charles policeman, and real estate salesman, testified he was acquainted with defendant through his former employment and his wife's baby-sitting for defendant's son. Defendant had occasionally visited him at the police station, Summers said, and at some time had spoken to Summers about selling his house although Summers had not seen the house.
In his own behalf, defendant testified that he drove his wife's car that night to the St. Charles police station where he asked when Summers would be in, then later drove back looking for Summers' car. He didn't know the gun was in the car, had been convicted of a felony at sixteen years of age, noticed the bag standing straight up at the side of the road and picked it up out of curiosity.
• 1-4 The guilt of an accused and the credibility of witnesses is for determination by the trier of fact. A jury may disbelieve defense testimony, and its judgment will not be set aside unless it is palpably contrary to the weight of the evidence or so unsatisfactory as to leave a reasonable doubt of the defendant's guilt. People v. Morehead (1970), 45 Ill.2d 326, 329, 259 N.E.2d 8; People v. Wilson (1970), 45 Ill.2d 581, 586, 262 N.E.2d 441; People v. Sumner (1969), 43 Ill.2d 228, 232, 252 N.E.2d 534; People v. Nicholls (1969), 42 Ill.2d 91, 95, 245 N.E.2d 771.
• 5 We conclude from our consideration of the evidence and the legitimate inferences reasonably to be drawn therefrom, that there is sufficient support for the jury's guilty verdict. Neumark, in a phone call received at his home at 9:50 P.M. on September 16, 1969, was directed to place a bag of money at a particular curve sign on Tyler Road. Within the hour, at 10:30 to 10:45 P.M., Babic was arrested with the bag in his hands and a gun in his car. He had passed and returned to this unlighted, rural spot, and was seen looking to the right and the left before and after alighting from his car. He had once worked for Neumark, and at the time of arrest was having financial difficulties. The evidence includes a photograph of a similar sized bag standing in the grass along the side of the road. A jury could reasonably decide it was not an object likely to attract the attention of a curious night motorist.
The issue of admissibility of the gun was tested in the trial court by a pre-trial motion of suppression and hearing thereon. Jones, the detective that drove Babic's car from the curve in Tyler Road into an enclosed garage within the police station, testified that he returned to the car within ten minutes of the time Babic was brought into the station and taken to the interrogation room. Jones' intention was to inventory personal property contained in the car, and he had no search warrant. Jones testified that he and another officer opened the car doors and a gun was found just slightly inside an arm rest folded down on the middle of the front seat. Jones said the gun was in plain view, and he didn't have to open ...