APPEAL from the Circuit Court of Cook County; the Hon.
LAWRENCE I. GENESEN, Judge, presiding.
MR. JUSTICE HALLETT DELIVERED THE OPINION OF THE COURT:
The defendant was, after a bench trial, found guilty of the theft of an electric typewriter alleged to have been owned by the Republic Packaging Corporation, of the value of $100, and was sentenced to nine months in the Cook County Jail.
On appeal, he contends inter alia, that the ownership of said typewriter was not established by competent evidence. We agree and reverse and remand, without reaching the other grounds urged by him.
At approximately 3:30 A.M., March 12, 1970, Officer James Gorman drove to the Republic Packaging Company building in response to a Wells Fargo burglar alarm received at police headquarters. Upon arriving, he noticed the defendant Poindexter and another named Echels emerging from the shrubbery alongside the building. Officer Gorman detained the men and radioed for assistance. While waiting for them to arrive, the two men explained that they were drinking wine in the shrubbery. When assistance arrived, Officer Gorman turned the men over to the assisting officers and then proceeded to check the building for a possible burglary. His search revealed a broken window. Inside the building and just below the window, he found numerous pieces of office equipment including calculators, typewriters, and adding machines. Outside and just across the street from the building he noticed an unattended parked white Cadillac with its engine running and the keys in the ignition. The car had several bullet holes in its windows. There was no identification inside the car and he was unable at that time to determine the car's owner. He proceeded to remove the keys from the ignition and to use them to open and unlock the trunk. There he found an IBM typewriter. He placed the two men under arrest and advised them of their rights. Both men were charged with the theft of said typewriter.
Prior to trial, a motion to suppress was made. In addition to the facts above summarized, Lillian Porter, grandmother of Echels, identified the white Cadillac as hers and testified that her husband had given the two defendants permission to use it the night of the incident in question. The court denied the motion and both defendants pleaded not guilty and demanded a jury trial.
When the case was subsequently called for trial, both parties waived jury trial. The judge carefully explained to each defendant his right to have 12 citizens decide his guilt or innocence but the defendant Echels, through his attorney, and the defendant Poindexter, himself expressly asked that the court hear the case, after which the trial was delayed while the Public Defender talked further to his clients.
At the trial, John Carmody testified that he was Manager of Design and Development for the Republic Packaging Corporation; that, after the incident in question, he went to its office, where he saw Sgt. Gorman and a man from Wells Fargo; that he found five or six typewriters, two or three adding machines and two or three calculators stacked under the broken window; that he then went to the police station where he observed People's Exhibit No. 1 for identification, being an IBM electric typewriter; and that he personally checked the serial number of that typewriter against a bill of sale for that typewriter and found that the numbers on said typewriter matched those on the bill of sale. The defendant's counsel objected on the ground that the bill of sale itself should be produced and that the witness' statement concerning the matching of the numbers was but a conclusion. The objection was overruled and the typewriter was admitted into evidence.
After Sgt. Gorman had testified as above summarized, the defendant Poindexter took the stand and testified that he was waiting for a bus at about 3:30 on the morning when Echels picked him up in a white Cadillac; that he was only a passenger and did not drive; that he and Echels were drinking wine alongside the building when they saw an officer coming and threw the bottles down; that he did not go inside the building, did not take anything outside the building or help anyone else do so and that he did not put the typewriter in the rear trunk of the car; and that, when questioned he denied so doing.
The court found both men guilty and Poindexter, who had three prior convictions of theft and one attempted burglary, was sentenced to nine months in jail. Motions for a new trial and in arrest of judgment were denied and Poindexter appealed.
We shall limit our consideration to the question of whether or not the ownership of the IBM electric typewriter was proved by competent evidence.
In IV Wigmore on Evidence, Chadbourn Revision, in the introduction to § 1177, at 406 (1972), it is said:
"The first to be considered of the rules of auxiliary probative policy is the rule requiring that a writing be produced in its original text, instead of evidencing it by somebody's testimony to its contents. * * *"
In 20 Am. Jur. Evidence, §§ 403, 406, 407, at 364, 366-7, 407, it is said, in pertinent parts:
"§ 403. Generally. It is an elementary principle of the law of evidence that the best evidence of which the case in its nature is susceptible and which is within the power of the party to produce, or is capable of being produced, must always be adduced in proof of every disputed fact. Secondary evidence is never admissible unless it is made manifest that the primary evidence is unavailable, as where it is shown that it has been lost or destroyed, is ...