APPEAL from the Circuit Court of Lake County; the Hon. L. ERIC
CAREY, Judge, presiding.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
The defendant, Philip Slayton, was convicted of burglary following a jury trial, and sentenced to 2-3 years in the penitentiary. In his appeal, defendant contends that he was not proven guilty beyond a reasonable doubt. Alternatively, he argues that his sentence should be reduced under the Unified Code of Corrections.
Defendant was tried with a co-defendant, Bob Robinson, for the October 5, 1971, burglary of the Lite House Lounge in Waukegan. Jerry Paschall was also indicted for the same offense, but pleaded guilty and testified as an accomplice witness against Robinson and defendant.
Paschall testified that he, Robinson and Slayton drove to the Lite House Lounge at approximately 1:30 A.M. October 5, 1971, after having been together earlier in the evening at the Mamma Mia's Tavern. The three of them then walked to the back door of the Lite House Lounge and tried to break in with angle irons. This failed and Robinson and the defendant went to the front door located at the same south side of the building. Robinson broke the glass in the door with the angle iron while Paschall remained at the back entrance. Robinson and defendant went in and defendant came to the back door and opened it for Paschall while Robinson stayed in the back room to look for whiskey. Paschall and defendant found a cigar box with change in it around the bar area. Paschall broke open a pool table coin slot, the change fell out and he and defendant put it on the pool table and into their pockets. Paschall related that he and defendant also tried to break into the coin box of a cigarette machine and in trying to pick it up it fell on defendant's foot and broke open, causing cigarettes and money to spill out. Paschall took the money and cigarettes but after the machine fell on his foot defendant left through the back door.
As Paschall proceeded to take six bottles of whiskey, he noticed a squad car across the street. He and Robinson then left the lounge and put the money, cigarettes, and whiskey into a 1971 Pontiac and left the area. The police pursued and Paschall and Robinson abandoned the car. Both were arrested in a nearby swamp-like area.
Paschall testified that after he was apprehended he was questioned in a police car by Detective Haley. He first told Haley that it was only he and Robinson who were involved, but stated on the witness stand that this statement was not the truth. When he talked later to Detective Stevenson he implicated the defendant Slayton as well. Paschall stated that at the time he made his statement to Detective Stevenson implicating the defendant no promises were made to him. After Paschall had spent approximately 60 days in jail he was offered his immediate release, a 60 day suspended sentence, with 3 years probation and credit for time served in exchange for his plea of guilty and truthful testimony about the burglary. He accepted the offer.
On cross-examination Paschall stated that he did not mention a "Junior Horn" to Detective Haley. It was brought out that before his arrest, Paschall was living at Slayton's apartment, along with defendant's wife, Bob Robinson, and Melvin "Junior" Horn; and that both Horn and defendant are American Indians.
Officer Mason of the Waukegan Police Department testified that at approximately 1:45 A.M. he spotted the broken glass door of the Lite House Lounge and then saw a 1971 green Pontiac with its lights off, slowly moving north of the Lite House; that the car then turned north on to Greenbay Road and accelerated to a high rate of speed. The officer testified that the car appeared to contain 3 subjects, but that the third person may have been an optical illusion. He pursued the vehicle to where it was abandoned.
Officer Smith of the Park City police testified that he apprehended Bob Robinson from a nearby swamp-like area.
There was testimony that the abandoned automobile contained bottles of whiskey, cigarettes, and coins in a Harvester cigar box, which box the owner of the Lite House Lounge recognized as his own. Both Robinson and Paschall were found to have pockets full of coins when apprehended.
On October 5, 1971, about 2:00 P.M., defendant was arrested at his home by Officer Holiday. At the time he was arrested defendant was wearing an old pair of shoes which were muddy, and was limping on his right leg. He told the officer that he got the limp in a fight at the Tic-Tok Tavern.
Detective Haley testified for the defense that he saw Paschall on October 4th, the evening of the burglary, about 7 to 8 P.M. with Bob Robinson and Melvin "Junior" Horn. Haley testified that when he apprehended Paschall after the burglary he asked him who was with him at the Lite House Tavern; that first Paschall denied participation, but after Haley informed him that he had observed him with two other people earlier in the evening and asked him again about the burglary Paschall then told him that he was with a Mr. Bob Robinson and another man whom he had just met that evening whose name he did not know. Haley then asked Paschall if this other man was an Indian, due to the fact that he had seen him earlier with Bob Robinson and "Junior Horn" who was also an Indian, and Paschall answered that he was. Haley testified that he then asked him if this was Melvin Horn that he was with, the Indian, and that Paschall answered "Yes, I guess so." On cross-examination, however, when the State's Attorney asked if Paschall used the name or stated to Paschall that Horn was involved in the burglary, Haley answered no. Haley also admitted that the questioning of Paschall was not specific enough to make sure that Paschall was not talking about 7 o'clock at night instead of the time of the burglary.
The defense introduced testimony that defendant was in a tavern about midnight before the burglary and was asked to leave. When he did not, the witness slapped the defendant with the back of his hand causing him to fall down. The witness stated that he did not step on defendant's foot and that the defendant walked straight out, pretty fast after he was struck. The witness did not notice whether defendant was limping when he left.
Benny Robinson, the brother of the co-defendant Bob Robinson, was tending bar at Mamma Mia's on the night of the burglary. He testified that he saw Slayton, Robinson and Paschall at the bar at midnight; that between 1:30 and 2:00 P.M. defendant and Robinson left the bar, stating that they were going to get something to eat. On ...