APPEAL from the Circuit Court of Cook County; the Hon. DANIEL
J. WHITE, Judge, presiding.
MR. JUSTICE HAYES DELIVERED THE OPINION OF THE COURT:
Defendant-appellant (hereafter defendant) was charged with the offense of theft of lost or mislaid property. (Ill. Rev. Stat. 1969, ch. 38, sec. 16-2.) Defendant moved to suppress his warrantless arrest, which had occurred on 14 April 1971. After a hearing on his motion on 28 April 1971, the motion was denied and defendant's bench trial began immediately. Defendant had pleaded not guilty and had waived a jury trial. Defendant was found guilty and was sentenced to pay a fine of $500 and no costs. Defendant appeals.
To facilitate an understanding of the issues raised by defendant on this appeal, we begin with the record of the hearing on defendant's pretrial motion to suppress his warrantless arrest. The sole witness at that hearing was the arresting officer. He testified that in the late morning of 14 April 1971, he had been told by a person unknown to him (described by the State in its brief as a citizen informer) that one Robert Hines, also unknown to the officer, had two checks which did not belong to Mr. Hines, but which Mr. Hines was trying to cash. The trial court later said that the officer had also been supplied by the informer with a description of Robert Hines. The officer made no attempt to secure an arrest warrant for Robert Hines. Instead, the officer and his partner proceeded to the routine patrol of their area in a marked squad car, and the officer, inter alia, kept an eye out for a man matching the description of Robert Hines. At 3:00 P.M. that afternoon, the officer, who was driving the squad car, saw such a man standing on a public sidewalk talking with another young person. The officer testified that at that time the man was not doing anything in violation of any law. Curbing the squad car across the street from the man, the officer called to the man to come over to the squad car. At that point, a bus passed on the street between the officer and the man, and the officer got out of the squad car and began to cross the street. When the bus had passed, the officer saw the man putting something into a litter basket on the sidewalk. The officer retrieved the things and found them to be two checks made payable to persons other than Robert Hines with the address of each payee also on the respective check. Thereupon the officer arrested Robert Hines (the defendant), who was later charged with the instant offense.
When the officer first testified as to what he had been told by the unknown informer, defendant's appointed counsel objected to the testimony as hearsay. The court overruled the objection on the ground that the hearsay was not being offered as substantive proof of the offense charged but solely to establish the reasonableness of defendant's warrantless arrest, for which limited purpose it was admissible. At the conclusion of the officer's testimony, the court denied defendant's motion to suppress the arrest.
Immediately thereafter, the bench trial began with a request by the prosecutor to defense counsel to stipulate, as evidence in the State's case in chief, to all the testimony of the arresting officer which had just been given at the hearing on defendant's motion to suppress the arrest. The colloquy went as follows:
"Prosecutor: I was asking for a stipulation of testimony at this point, Mr. Public Defender.
Public Defender: There are some additional factors I like [sic] to find from the officer. I'll stipulate to all of the explanation.
The Court: You stipulate to testimony already adduced on motion to suppress [to be] same testimony introduced by the State on the case in chief?
Public Defender: I would like to have additional cross-examination.
The Court: Otherwise you stipulate?
Thereupon the arresting officer testified as a witness for the State and merely added that he had advised defendant of defendant's constitutional rights. On cross-examination, he admitted that defendant had given him an oral statement at the time of the arrest; he added that the place of arrest was about three miles away from the addresses on the checks (which were tax refund checks); that about two minutes elapsed between the time he first saw defendant and the time of arrest; that he did not see anything handed between defendant and the other person who was standing talking to defendant; that defendant and the other person were standing about two feet away from the litter basket; that he did not know what happened to the other person, because he was after defendant and not the other person.
The payee-addressee of one of the checks then testified that she did not know defendant, had not given him permission to possess the check, and had not seen the check before, though she usually looked for it in September. Testimony by the partner of the arresting officer, essentially corroborative of the testimony of the arresting officer, completed the State's case in chief.
Defendant then testified in his own behalf. At 3:00 P.M. on 14 April 1971, he had just come out of a store and was standing on the public sidewalk at the corner of 43rd Street and Ellis Avenue in Chicago. He was then approached by a person who handed him the two checks and asked him whether he could do anything with them. He had had the checks in his possession for about ten seconds when the arresting officer had called him over to the squad car. As he started to respond, the bus passed between him and the arresting officer. At that time he tried to return the checks to the boy, but the boy did not accept them and started to walk away. It was then that he had thrown the checks in the litter basket. Almost immediately, the arresting officer had grabbed him, pulled him over to the litter basket, retrieved the checks, arrested him, and walked him over to the squad car. He had immediately told the arresting ...