APPEAL from the Circuit Court of De Kalb County; the Hon. CARL
A. SWANSON, JR., Judge, presiding.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
Jimmy R. Hughes, a/k/a James Bolton, was convicted of burglary after a jury trial, and sentenced to 3-10 years in the penitentiary. Appealing, he claims error in denying his motion for a new trial based on newly discovered evidence; and contends that he was not proven guilty beyond a reasonable doubt, that he was deprived of a fair trial by the improper admission of evidence of his prior record and prejudicial testimony that he had exercised his right to remain silent, and that his trial counsel was incompetent.
The charged burglary occurred about 9:45 P.M., February 5, 1969, at the Fairdale Grocery Store located on the north side of Route 72 in Fairdale, Illinois. The store adjoined "Club 72", a tavern. Mrs. Roger Littlejohn, who lived across the road from the tavern, testified for the State that she saw a light colored Chevrolet station wagon pull off Highway 72 and park in front of the tavern. After a few minutes the car backed and re-parked, facing the lean-to on the side of Club 72; then after another few minutes backed in toward the tavern and again parked facing the grocery store. She saw two men leave the car and go to the back of the store. The witness, continuing her narrative, said:
"So I didn't pay very much attention after that until they was a car parking at the tavern, down by the tavern door, and that gentleman come out and come in the car and started it and went down by the store. When this gentleman started the car, evidently there was someone in this parked car, and he flashed the blinkers twice, and that made me wonder what was going on. So I watched then, and after a while I seen a gentleman run from the car to the store, * * *."
Mrs. Littlejohn then called the tavern. She saw two young men go from the tavern toward the store. The witness continued her narrative:
"I went to the window and watched, and in a short time I see this car pull up in front of the car, and one more came out there. One fell on the porch as he come out there. He got up and both got in the car and went east, * * *."
Michael Miskimon, one of the boys who came from the tavern to the grocery store in response to Mrs. Littlejohn's call, testified that he went a couple of feet inside the store, the door of which was open, and saw two men in it. He asked them what they were doing there, upon which the men inside stooped down and "froze". Miskimon returned to the tavern and told the people there to call the police. When he again emerged from the tavern the men were getting into a 1959 or 1960 Chevrolet station wagon which was parked, backed toward the tavern. The boys followed the car, which eluded them by turning off its lights, turning around in a farm yard, and heading back west toward Fairdale. The witness could not accurately describe the men in the store nor identify the defendant.
Ronald Roach, the other boy who responded to Mrs. Littlejohn's call, testified he saw a man in the store and one in the car. He then returned to the tavern. Upon leaving the tavern again, Roach saw a man wearing a black coat with a white or yellow band leave the store and enter the car, which had pulled over in front of it. He identified the car as a 1959 or 1960 greenish-blue and white station wagon with no license plates, and indicated this was the same car he saw at the scene of an accident sometime after it eluded them when he and several others attempted to follow it.
Another witness testified that he was driving west on Route 72 when he was met by a car which turned its lights off as it passed him. He was able to recognize three silhouettes in the car. He saw the car again when it ran into a tree, and went to summon aid.
There were three occupants of the car, one of whom was injured, one uninjured and one dead. They were taken in an ambulance to the hospital in Rockford. The wrecked car was a 1960 Chevrolet, white over turquoise, four-door station wagon. An officer at the scene removed a title application from the windshield of the car which listed the name of the defendant as the owner of the car. The officer did not see the defendant at the accident scene, but he did see him at the hospital and testified that he saw a dark coat with a white or yellow band on the back hanging on a dividing wall in the emergency room of the hospital. The officer testified that at the hospital the defendant told him the car was his but he had not been driving. There was testimony by other witnesses that the defendant was one of the injured persons picked up at the scene and taken to the hospital. Articles identified as taken from the burglarized premises were found in the station wagon along with a large quantity of beer and beer containers.
Defendant did not testify. The widow of Howard Voyles, the man killed in the accident, testified that she had last seen her husband alive at 5 or 6 P.M., the night of the accident. In her testimony she had accounted for some of the items found in the car, stating that she had given them to her husband. The sister of the defendant testified that the defendant and Voyles had come over to her house about 5:30 on the night of the accident and that she sensed the defendant had been drinking.
After the jury found the defendant guilty of burglary he failed to appear for his scheduled hearing in aggravation and mitigation and his bond was forfeited. After his return defendant's trial counsel withdrew and defendant obtained new counsel who was permitted to file a delayed post-trial motion. In the interval, the trial judge who had heard the case had resigned due to illness and the case was reassigned. Defendant's motion for a new trial based on newly discovered evidence was denied and defendant sentenced.
Defendant first claims that the court erred in denying his motion for a new trial based on newly discovered evidence. The motion alleged that the testimony of his accomplice Dewayne Clark was unavailable at the time of trial. In the hearing on the motion, Clark testified that on the day in question Voyles, the deceased accomplice, along with the defendant and Clark had gotten together around 4:30 or 5:00 o'clock in the afternoon and proceeded to engage in heavy drinking, including consuming a number of cases of beer in the car and stopping in numerous places in Rockford to drink other alcoholic beverages; and that later in the evening, while still drinking beer, the three drove to DeKalb County with Voyles, the individual killed in the accident, driving. Clark further testified that they stopped at the Fairdale Grocery Store; that he and Voyles got out of the car and burglarized the store; that during this time the defendant had passed out in the rear seat of the car from drinking too much alcohol; and that defendant had in no way participated with Voyles and Clark in burglarizing the store.
In denying the motion, the court referred to the fact that it was shown that Clark was not a fugitive at the time of the trial as had been earlier represented in the post-trial motion, but was either in Winnebago County jail or at the penitentiary in the State of Illinois. From this the court concluded that the witness was available and could ...