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People v. Barber

JULY 1, 1974.




APPEAL from the Circuit Court of Kane County; the Hon. JOHN S. PETERSEN, Judge, presiding.


The defendant was convicted of burglary after a jury trial and sentenced to 7-15 years in the penitentiary, to be served concurrently with any sentence upon which he was serving time or on parole. He appeals, contending that the court committed reversible error in admitting a prejudicial photograph and in giving a non-IPI instruction, entitling him to a new trial. He alternatively argues that the sentence was excessive and improperly based on matters outside the evidence.

The offense charged resulted from a theft in which various items including a white suitcase, a billfold and a hand mixer were taken on September 17, 1971, from the Aurora home of Lucille McCarthy in her absence. There were no eye witnesses. The investigating officers testified that on September 24 following the burglary they stopped a car which defendant was driving for the purpose of serving an outstanding arrest warrant on one of the passengers.

The officers saw a white suitcase in plain view on the seat behind the driver which the officers recognized from their investigation of the McCarthy burglary. Both defendant and the passenger were arrested. Defendant signed a waiver to permit a search of his vehicle.

A wallet missing from the McCarthy home containing Mrs. McCarthy's identification was found on top of the dashboard. When the suitcase was opened, it was found to contain packs of various brands of cigarettes and a policeman's nightstick. The search of the car revealed items including flashlights, transistor radios, and various tools, none of which were identified as taken from the McCarthy home. However, a portable mixer and a portable typewriter identified as taken from the McCarthy home were also found in the car.

There was testimony that defendant regularly smoked one of the brands of cigarettes found in the suitcase; and that the same brand identified as Marlboro cigarettes, as well as Raleigh cigarettes, partially smoked, were found in the McCarthy home and outside near the broken window where the entry was made. Mrs. McCarthy testified that she lived alone in the house and did not smoke.

Defendant did not testify but his signed statement given to the police admitting that he and Mendiola committed the burglary was in the evidence.

Defendant's girl friend testified in his behalf that she saw some of the described stolen merchandise in the apartment of the passenger Joe Mendiola and that he exhibited acts of ownership. There was also testimony by the witness and defendant's mother, who claimed to have seen the car every day during the period, that none of the stolen merchandise was seen in the defendant's station wagon between the time of the alleged burglary and his arrest.

Under these circumstances the defendant contends that it was reversible error to give the following instruction:

"The Court instructs the jury that the recent and unexplained possession of stolen property by the defendant, if the evidence so shows, tends to establish his guilt, and is sufficient, of itself, to authorize a conviction unless the inference of guilt thereby raised is overcome by other facts and circumstances in evidence, so as to raise in the minds of the jury reasonable doubt of such guilt."

Defendant argues that the instruction does not comply with the law because it fails to charge that the defendant had exclusive possession as a basis for the inference of guilt as set forth in IPI Criminal sec. 13.21 (1968). He also urges consideration of Supreme Court Rule 451(a) (Ill. Rev. Stat. 1969, ch. 110A, par. 451(a)) which requires that Illinois Pattern Jury Instructions-Criminal be used when applicable, unless the trial court determines that the instruction does not accurately state the law.

• 1 We note, however, that defendant failed to tender IPI 13.21 and failed to object to the given instruction on Supreme Court Rule 451(a) grounds. Under these circumstances, the trial court had no duty to give that instruction and defendant waived the right to raise this issue on appeal. (People v. Springs (1972), 51 Ill.2d 418, 425. See also People v. Carvin (1960), 20 Ill.2d 32, 36; People v. Rudolph (1973), 12 Ill. App.3d 420, 427; and People v. Colon (1973), 9 Ill. App.3d 989, 998.) While there is some doubt from the record that the defendant objected to the instruction on the other specific grounds urged here, we cannot conclude with certainty that he failed to object and thereby waived his right to raise the issues on appeal. We will therefore consider his other arguments on the merits.

• 2 The inference of guilt from unexplained possession of recently stolen property has been long established. In Comfort v. People (1870), 54 Ill. 404, 407-8, the court stated the rule that recent possession of stolen goods after the theft is sufficient to warrant a conviction unless the circumstances and other evidence so far overcome the presumption as to create a reasonable doubt of guilt. In Comfort, a recent pawnbroker's receipt in defendant's name was held sufficient evidence of defendant's possession of stolen property found in a pawnbroker's shop. (See also People v. Pride (1959), 16 Ill.2d 82, 89-90.) The presumption that the possessor of recently stolen property is the thief is an inference which the jury may be permitted to draw based on human experience and common sense from known events or circumstances. People v. Fiorito (1952), 413 Ill. 123, 128-9.

Defendant has cited a number of cases in which there is the statement that the possession must also be exclusively in the defendant for the inference to be drawn. (E.g., People v. Urban (1942), 381 Ill. 64, 69; People v. Hawkins (1963), 27 Ill.2d 339, 341; People v. Davis (1966), 69 Ill. App.2d 120, 125.) Defendant argues that the authorities establish that the instruction must not only contain the reference to defendant's possession but must characterize the possession as "exclusive." And he further argues that the evidence for the defense that the passenger Mendiola exhibited acts of ownership when the property was seen in his apartment and that the property was not seen in his car prior to the day of the arrest raised a reasonable doubt that defendant ever had sole, personal and exclusive control of the property. Thus he claims that at the very ...

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