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People v. King

MARCH 22, 1973.




APPEAL from the Circuit Court of Bureau County; the Hon. THOMAS R. CLYDESDALE, Judge, presiding. MR. JUSTICE SCOTT DELIVERED THE OPINION TO THE COURT:

The defendant Raymond King was on April 28, 1971, indicted for the crimes of burglary and theft. He subsequently entered a plea of guilty to the charges contained in the indictment. Thereafter he was granted probation for a period of 18 months, the first six months of which he was to be incarcerated in the Bureau County jail. The other conditions of the defendant's probation were the mandatory ones imposed by statute which included the prohibition that he should "not violate any laws of the State of Illinois or any ordinance of any city or village therein during said probation." However, during his term of probation the state's attorney of Bureau County filed a motion to revoke probation on the grounds that he had committed the crime of burglary. After hearing it was the determination of the trial court that the State had proven by a preponderance of the evidence that the defendant had violated probation by having committed such crime and an order was entered revoking probation and sentencing the defendant to a term of not less than 1 nor more than 3 years in the penitentiary. This appeal stems from this order of revocation and the sentencing of the defendant.

A number of issues have been presented for review and we first direct our attention to the question as to what quantum of proof is required by the State in a probation revocation proceeding where the probationer has been charged with the commission of a criminal offense.

• 1 The defendant contends that the State must prove by the "most convincing" proof the allegations of the motion to revoke probation, and that such requisite establishes a greater standard than that required by the "preponderance of the evidence rule." To support his contention the defendant relies on the case of People v. Dwyer, 57 Ill. App.2d 343, 206 N.E.2d 113.

Our supreme court dealt with this precise question in the case of People v. Crowell, No. 44844, and concluded that the defendant's argument was without merit. In support of this conclusion the supreme court in Crowell stated:

"Since this court has never before ruled on the precise question of what the quantum of proof should be in a probation revocation proceeding, and in the absence of statutory provision therefor (Ill. Rev. Stat. 1971, ch. 38, par. 117-1 et seq.), we hold that a violation of the conditions of probation must be proved by a preponderance of the evidence.

We note, moreover, that the General Assembly has specifically incorporated this standard in the new Illinois Code of Corrections (Ill. Rev. Stat. 1971, ch. 38, par. 1005-6-4(c); P.A. 77-2097), effective January 1, 1973."

This pronouncement of the supreme court is dispositive of this contention of the defendant and we therefore likewise hold it to be without merit.

The defendant raises a number of issues for review, one of which is that the evidence failed to establish any connection between the defendant and the crime charged.

The following facts were adduced at the hearing to revoke the defendant's probation. James Virgil Kasbeer testified that he was the owner of a restaurant known as Skip's Kasbar located in Hollowayville, Bureau County, on Route Number 6. Kasbeer and his family, consisting of his wife Enita, his son Michael, and his brother-in-law Lyle Curley, resided in the back portion of the restaurant building.

The record further discloses that on the evening of March 3, 1972, James and Enita Kasbeer closed the restaurant at approximately 10:00 o'clock P.M. and sometime thereafter they left the building for the purpose of visiting a Don Polly. The son Michael and Lyle Curley remained in the residence portion of the restaurant. Sometime between 12:00 to 12:30 o'clock A.M. Michael noticed from his bedroom window that someone was knocking at the back door. The knocking continued for 10 to 15 minutes, then stopped for approximately 5 minutes and the door was opened and a man walked into the building. Michael recognized this man, who was dressed in a plaid jacket, as Raymond Platt. A second man waited outside the door but Michael did not get a good look at him and could only describe him as being about five feet, eight inches in height, heavy, and that he wore a dark coat which was similar to a military jacket.

When Lyle Curley yelled the two intruders ran away and disappeared in the darkness. Momentarily after they disappeared a loud noise from a car was heard but when Michael, who attempted to pursue them, looked down the highway he failed to see anyone or any vehicle.

A deputy sheriff was notified of this burglary and he proceeded to Skip's Kasbar where he talked to Lyle Curley, Michael Kasbeer and James Kasbeer, who had returned to his place of business. The deputy then proceeded on Route 6 for approximately an eighth of a mile until he came to a gravel road which he turned on to and after traveling a short distance he saw car tracks in the snow and could tell from the tracks that an automobile had been backed into some bushes. The deputy also found footprints of two individuals which led in two different directions. A picture was taken of the tire tracks which indicated that they were made by new tires and that the tires were of an unusual width, being 6 1/2 inches wide. The investigating officer also discovered broken twigs in the area where the automobile had been parked.

At approximately 1:15 A.M. on March 4, 1972, an Officer Smoode of the Spring Valley Police Department saw the defendant as he was driving a red Dodge convertible in the city. Spring Valley is about 6 or 7 miles from Hollowayville. The officer stopped the defendant because he had only one tail light and his muffler was slightly loud. At this time Kevin Platt was sitting in the front seat with the defendant. The defendant at this time had long blond hair, was stockily built and was wearing a green corduroy jacket. The defendant fixed the faulty tail light and was permitted to go on his way. Prior to permitting the defendant to depart the officer had radioed the sheriff's office that he had stopped two subjects who fit the description of the men wanted in the Skip's Kasbar burglary, but when he received no response he authorized their departure. However, shortly thereafter Officer Smoode was requested by the sheriff's office to take the men into custody. The officer complied with this request and the defendant after again being stopped was taken to the Spring Valley City Hall and later to the Bureau County jail. Prior to being confined in jail the defendant denied any complicity in the Skip's Kasbar incident. His automobile was photographed and examined. The examination disclosed that the vehicle had no back window, that snow had entered through this opening into the vehicle and that two small sticks were on the back seat.

When the defendant was taken into custody a third party was also present in his vehicle, an individual called "Peanuts", who was determined by the police to be a hitchhiker and who was picked up by the defendant. The testimony of Officer Smoode was that he had seen the individual referred to as "Peanuts" hitchhiking between 1:00 A.M. and 1:15 A.M. on the morning of ...

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