APPEAL from the Circuit Court of Tazewell County; the Hon.
JAMES D. HEIPLE, Judge, presiding.
MR. JUSTICE DIXON DELIVERED THE OPINION OF THE COURT:
The defendants Chester Schabatka and Norburn Dean were found guilty by a jury of burglary and arson. The Circuit Court of Tazewell County sentenced Dean to imprisonment for not less than 5 nor more than 10 years for burglary and not less than 5 nor more than 15 years for arson, sentences to be concurrent. Schabatka was sentenced to not less than 2 nor more than 5 years for burglary and for not less than 5 years nor more than 10 years for arson, sentences to be concurrent. Both defendants appeal contending that the jury was not properly instructed; that they were denied equal access to discoverable material and other physical evidence; that they were denied the right to have the jury consider certain evidence; and that the record does not establish their guilt beyond a reasonable doubt.
On July 23, 1971, James Emmons and wife Ann, were buying a home at 115 Fifth Street, South Pekin, Illinois. They had occupied the house for about a year but on July 23 they were on vacation visiting a relative in Omaha, Nebraska. No one had been given permission to live in their home during their absence but they had asked Debbie Davison, a neighbor girl 15 years old, to watch the house and take care of their dog. The house contained an oil furnace and a gas stove on which pilot lights were burning. On learning of a fire in their home they returned and discovered the house "gutted" but "nothing missing." The contents and the house were insured and the full amount of insurance was paid by their insurance company. Neither knew either defendant and had no dealings with them.
At about ten o'clock on the night of July 23, 1971, Debbie Davison was at her home with her mother and sister. The Emmons home was about 100 feet away. Debbie heard glass breaking, looked out her window and saw figures of two men at the back door of the Emmons home. She did not see what they were doing; it was dark and they were standing up. One of the figures had on a white T-shirt and the other had dark clothing. One was tall and one comparatively short. After watching about 2 minutes she left the window and called the police. When Debbie returned to the window there were two explosions; she saw one person "fly out of the house" and the other one came running out. Both were on fire and they began rolling in the grass. It was not light enough for her to see the faces and she could not identify the men.
David Lee Lowery, a friend of defendants, was working the 4 o'clock to midnight shift at American Distillery in Pekin on July 23, 1971. At around 10 o'clock that night he received a note requesting he call the telephone number of defendant Schabatka. He called Schabatka at his home, checked out of work and drove to Schabatka's home where he found both defendants burned "pretty bad." When he first saw defendants, Schabatka was wearing a bathrobe, and Dean's clothing was mostly "burned off he had not much of anything on nothing that I can say what color." At this time Schabatka was conscious but Dean was in shock, "coming and going not really conscious." Lowery administered first aid (he had had army training for burns in crash rescue). He telephoned Jim Clark, requesting assistance in transporting defendants to hospital, and, when Clark arrived, the defendants were placed in Lowery's car. He decided to take defendants to St. Francis Hospital in Peoria rather than to the nearby Pekin hospital because his mother was employed at the St. Francis emergency room. At Creve Coeur the car was stopped for speeding by local police who called an ambulance and who then escorted the car until the ambulance was intercepted in East Peoria and defendants transferred to the ambulance for the remainder of the trip.
Larry Layer, a sergeant in the Sheriff's department who was on duty at the time of the fire, made plaster casts of footprints found in the area. He found burned clothing at the scene, a flashlight, a small pry bar and corn leaves containing blood stains. He went to St. Francis Hospital emergency room where he took both defendants' clothing (no T-shirt) and shoes and certain cotton swabs. As a result of what defendants told him he "had patrol cars check for a burned station wagon."
The blood on the corn leaves was type A. Defendant Schabatka had type A, but so do about 40% of the population. Scientific analysis disclosed that the fabric of clothing found at the scene, could not have originated from the clothing taken at the hospital, the soil removed from defendant's shoes "failed to reveal a sufficient number of areas of similarity to indicate a common source; no fingerprints were found on the flashlight and pry bar; and the casts of the footprints at the scene did not match with shoes of either defendant taken from the hospital."
An arson investigator inspected the Emmons home on August 12, 1971. He detected the odor of gasoline on carpet samples, concluded that the fire was started by an accelerant and that gasoline fumes could have been ignited by the pilot light on the gas stove.
James A. Flynn, a criminologist, scientifically analyzed the carpet samples, defendants' clothing and the cotton swabs all of which he stated contained gasoline vapors.
The first witness for the defendants, Wayne Werchez testified that he had a small used-car business and that in July 1971 he sold an old red Dodge or Plymouth station wagon to a Ralph Johnson for $50 or $75. Johnson was a "kind of hippie type fellow with long hair and whiskers."
Donald Barth testified that on July 25, 1971, he saw a red 1960 Dodge station wagon that had been badly burned. The tires and radiator were on it. The car was behind a slag pile off the traveled portion of a gravel road about a half mile south of LaMarsh Creek Road. He notified the sheriff's department.
Robert DuBois, a crime-scene technician went to the car on July 26, 1971. He photographed and took debris samples from the interior. The debris samples were negative as to the presence of any accelerant. When he saw the car, the front tires and the radiator were missing. There was no battery in the car and there was no residue of any plastic or battery material having melted in the area.
William Bond testified that both defendants were working on Dean's house when he left them at 8:30 on evening of July 23, 1971.
Sylvia Armstrong testified that she saw defendants arrive at Tony Baker's tavern in Mapleton, Peoria County, at between 8:45 and 9. She saw them leave between 9 and 9:20 P.M. with a man about 30 to 35 years old who had long hair and was wearing glasses. Defendants were wearing pants and shirts but she didn't really pay that much attention. They were not in the tavern "too long."
Defendant Schabatka testified that about 8:30 he and Dean left Dean's house and drove 4 or 5 miles across the river to Tony Baker's tavern arriving at about 8:40. While there, this stranger, a hippie type with long hair asked Dean to help him get his car started. Defendants agreed to "give the guy a hand." They all left the tavern about 9:15 to 9:20 P.M. On the way to the car the guy said his name was Ralph Johnson. After driving about 5 minutes they came upon Ralph Johnson's car. After trying unsuccessfully to get the car started they determined it needed gas to be poured into the carburetor. In the wagon there was an outboard motor containing gas and an empty can. The outboard's gas was poured into the can. Dean then poured gas into the carburetor, shut the hood, came around the car, sat in the seat beside Schabatka and said "OK try that." Johnson stood right beside the driver. Both doors were open. Schabatka then tried to start it and the car exploded, flames shot from everywhere. He testified, "Well, I blowed out of the car and I was all on fire, completely on fire seemed like at the time." His clothes were on fire and he got the fire out and then he got Dean and drove home (about 5 miles). He did not know what became of Johnson as he never saw him again after the explosion. At home, "We took off the clothes what was left." He put on a bathrobe. At home his wife was too shaken to drive defendants to hospital so he called his buddy David Lowery. At the hospital when he talked to the police he was not in his right mind. He was burned from the waist down, had some burns on his arms and had a cut requiring stitches on one of his arms.
The defense contends initially that the jury was not properly instructed in that the court, over objection, gave I.P.I. Criminal No. 3.04 and refused defendants' tendered instruction 3, 4 and 11 which were not in I.P.I.
I.P.I. 3.04 reads, "Motive is that which prompts a person to act. The State is not required to prove a motive for the commission of the crimes charged."
• 1, 2 Defendants concede that the cases cited by the Committee hold that motive is not an essential element of proof in a criminal case but seizes on the exception: "Accordingly, if the People adduce evidence tending to prove a motive and the prosecutor argues the circumstance of motive to the jury, this instruction should not be given." Defendants further concede that nothing was adduced in the evidence concerning motive, except inferentially, in the testimony of James Emmons that he did not know the defendants and had never had anything at all of any kind, character or nature to do with them. We do not agree ...