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People v. Stephens

JUNE 6, 1973.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

THURMAN STEPHENS, JR., DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Kane County; the Hon. JOHN S. PETERSEN and the Hon. JAMES E. BOYLE, Judges, presiding.

MR. PRESIDING JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT:

A jury found defendant, Thurman Stephens, Jr., guilty of armed robbery; he was sentenced to serve 8 to 12 years in the penitentiary. Two co-defendants were tried separately, found guilty, and their convictions affirmed by this court. See, People v. Iverson, 9 Ill. App.3d 706 (1973), and People v. Friday (1973), 11 Ill. App.3d 1071.

Three issues are raised: (1) The search warrant was issued without probable cause and was improperly executed by the issuing magistrate; (2) the interrogation of a defense witness by the trial judge constituted error; and (3) the court erred in allowing the introduction of certain evidence.

• 1, 2 The complaint for a search warrant, signed on January 21, 1971, by a police sergeant, stated:

"On January 9, 1971, four persons forced their way into the home of Mr. & Mrs. Jos. Garcia, 473 South St. Elgin, Kane County, Illinois; by threatening the four occupants of the home with guns, they took the above described property from the said occupants and fled the scene; Robert Soule has admitted participating in the robbery, and has implicated Thurman Stephens of above address, by stating that Stephens was one of the robbery participants, and that further that the property taken from the Garcia home was divided at the Stephens residence above described; Stephens is reported to have received over $20,000.00 as his share plus various items of personal property as described above; Stephens is known to the undersigned as having spent large sums of cash at Zimmerman Ford; and is reported to have purchased many items of personal property, said report being made by Robert Soule."

Defendant made pretrial motions to quash the warrant and to suppress articles seized. The motion to quash was denied and the motion to suppress, allowed, except as pertinent to a pair of cufflinks and certain currency and coins.

Defendant contends the warrant should have been quashed, arguing that if the informant, Soule, had observed the proceeds of the robbery in defendant's apartment on January 9th, it was unreasonable to believe that the proceeds would still be there 12 days later, on January 21st, the date of the complaint.

No fixed rule sets forth the time within which a complaint for a search warrant must be made; the time should not be remote, but what constitutes "remoteness" must be decided on the basis of the individual case. (People v. Montgomery, 27 Ill.2d 404, 405 (1963); People v. Dolgin, 415 Ill. 434, 441-442 (1953).) The robbery proceeds observed by Soule in defendant's apartment created sufficient probable cause and we hold that the 12 day interval was not so remote as to override the reasonable belief that some of the proceeds were present on the premises at the time the warrant issued.

• 3 It is further argued that the warrant was invalid because the signature of the issuing magistrate was stamped rather than written. The trial judge overruled this contention by taking judicial notice of the magistrate's poor eyesight, his practice, for many years, of using a signature stamp in execution of his judicial duties, and the exclusive retention of the stamp in his personal possession. Defendant contends that the court erred in taking judicial notice of facts "not known to everyone to be true." From this base he claims that, having established the fact that the magistrate's signature was executed by means of a stamp, it became the State's burden to prove its authenticity. On this type of motion, the burden of proof rests upon the defendant. (Ill. Rev. Stat. 1969, ch. 38, sec. 114-12(b).) It is the intent of the person executing his signature, not the manner by which it is executed, which determines the signature's validity. "A `signature' may be written by hand, printed, stamped, typewritten, engraved, photographed or cut from one instrument and attached to another * * *." (Black's Law Dictionary, 4th ed. p. 1553.) Here, without further evidence to show that the signature was not the intended act of the magistrate, the single fact that the signature was stamped was insufficient to shift the burden to the State or to overcome the presumed validity of the signature. We find that, under the circumstances, the warrant was legally executed.

At trial, the State established, through Soule, that the defendant was one of four who participated in the robbery and that the proceeds were thereafter divided at the defendant's apartment. Defendant relied upon an alibi, testifying that at the time of the robbery, he, his girlfriend, his wife (from whom he was separated), and another woman were at his apartment; that Soule came to the apartment at about midnight and attempted to hand him a package to hold; that he was in the midst of a family "squabble" and didn't take the package; that later he was aroused from bed by Soule who asked him to hold the package "to give to Ollie Burns the next day"; that when Soule left, defendant opened the package and found $5300; that the next day he used the money to buy a car, a television set and various other items. Defendant volunteered that he and Burns had, on quite a few other occasions, spent each other's money.

In support of the alibi, defendant's wife testified that he was indebted to her in the sum of $2500; that on the night of the crime, she was with the defendant in his apartment having come from Benton Harbor, Michigan, to discuss the repayment of the money due her. During testimony, she indicated that she did not know whether the defendant was employed at the time of her visit. At the conclusion of her examination, the court inquired:

"Q. Did you come down here on January 8th, 9th and 10th to get the $2,500 he owed you?

A. The 8th, 9th and ...


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