APPEAL from the Circuit Court of Cook County; the Hon. KENNETH
R. WENDT, Judge, presiding.
MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
After a bench trial, the defendants were convicted of theft. (Ill. Rev. Stat. 1969, ch. 38, sec. 16-1(a-1).) Defendant Harris was sentenced to four years probation, the first nine months to be served in the House of Correction, and defendant Page was sentenced to a term of one to three years in the Illinois State Penitentiary. Defendants appeal.
The issues presented for review are:
1. Whether a determination of the defendants' credibility made by the trial court based upon an independent investigation by the trial judge, untested by cross-examination or any of the rules of evidence, into matters which were subject to the attorney-client privilege denied the defendants due process of law.
2. Whether the defendants were proved guilty of theft beyond a reasonable doubt where:
a. The evidence failed to prove that the vehicle the defendants were allegedly in was the same vehicle stolen from the complainant.
b. The identification of the defendants as the alleged offenders was doubtful, vague and uncertain.
c. The evidence failed to prove that the defendants were in possession of and exerted unauthorized control over the allegedly stolen automobile with intention of permanently depriving the owner of possession or use.
d. The trial judge shifted the burden of proof to the defendants after the trial court conducted an independent investigation.
Mrs. Helen Robinson testified that on January 9, 1971, at about 11:30 P.M., she parked her car, a gold 1964 Chevrolet, at the corner of 39th and Indiana, locked it and left. She returned about a half hour later and could not find her car. She called the police to report it missing and was informed that she had to have the serial number. She went home to get it and, while there, received a call from the police that they had recovered the car.
At about 12:30 A.M., on January 10, 1971, Officers Hudik and Pavelich, while riding in an unmarked car and before they had any knowledge of the report by Mrs. Robinson, noticed a gold 1964 Chevrolet in the area of 43rd and Prairie Avenue. They noticed that the three occupants appeared to be very young and approached the vehicle and attempted to get the attention of the youths by flashing the spotlight into the car. This attempt was ignored and the officers again flashed the light into the car. This time the three youths turned around and looked at the police car. They then accelerated and the officers gave chase with the siren and the Mars light on. The youths then proceeded to an empty lot, emerged from the car while it was still moving and started running. The officers stopped their car, got out and followed on foot, but were unable to catch them. Officer Hudik returned to the police car and called for assistance, giving a description of the three youths to Officer Larisey, who, along with Officer Berris, responded to the call for assistance. Officer Hudik then returned to the gold Chevrolet and noticed that the ignition was pulled out and the right front fender damaged.
About five or ten minutes later, Officers Larisey and Berris arrested three individuals on the corner of 43rd and Wabash. Officers Hudik and Pavelich were called and identified them as the same three they saw leaving the gold Chevrolet. They were then taken to the station.
The defendants testified that they were at a party and had gone to a restaurant across the street from the party to order some food. After ordering the food, they were on their way to a store on the corner of 43rd and Michigan to buy some cigarettes when they were arrested on the corner of 43rd and Wabash.
At the trial, the court asked the defendants' attorney if the defendants told their alibi story to the public defender at their first meeting. The defendants' attorney said he had no notes as to such a statement and the trial judge then replied that he could not believe the ...