APPEAL from the Circuit Court of McDonough County; the Hon.
KEITH F. SCOTT, Judge, presiding.
MR. JUSTICE DIXON DELIVERED THE OPINION OF THE COURT:
George Robbins was indicted on a charge of burglary. He was arrested in connection with the offense on January 24, 1972, and was held in custody continuously until the date of his trial. He was found guilty by a jury and was sentenced by the Circuit Court of McDonough County to a term of not less than 4 years nor more than 9 years.
On the day before trial was to begin defendant filed a motion requesting discharge under the provisions of section 103-5(a) (d) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1971, ch. 38, § 103-5(a) (d)) alleging that he had been in custody for 121 days. The motion was denied by the trial court. Defendant contends on appeal that this was in error.
• 1, 2 The defendant first appeared in court on March 29, 1972, for arraignment. On that date he asked for and was granted a continuance to April 12, 1972, in order to prepare motions. The State objected, asking for immediate arraignment, but was overruled. The factual situation in this case is similar to that in People v. Gulick, 7 Ill. App.3d 427. It is obvious that a legal impediment to trial existed from March 29, 1972, to April 12, 1972. The prosecution was in no position to demand trial during that period and the period of time contemplated by the 120-day rule then began to run from April 12, 1972. Trial was held well within the 120 days, and the trial court was correct in its ruling. A continuance granted at the request of the defendant is a delay "occasioned by the defendant." People v. Young, 46 Ill.2d 82, 85.
After laying a foundation for the admission of exhibits the State rested its case without having moved for the introduction of the exhibits into evidence. Immediately thereafter the State moved for their admission. The motion was allowed over objection by the defendant, who now contends this to be reversible error.
• 3 Whether either party may introduce evidence that he should have introduced at an earlier stage of trial rests largely in the discretion of the court (People v. Kelly, 378 Ill. 273), and this discretion will not be interfered with except where clear abuse or prejudice to the defendant is shown. (People v. Franceshini, 20 Ill.2d 126.) Defendant has cited People v. Cross, 40 Ill.2d 85. Cross allowed the State to re-open to make proof of ownership of a building in a burglary case after defendant had made a motion for a directed verdict pointing out that the State had failed to make such proof. Here the motion to admit the exhibits was a formal matter and as in Cross could not have taken the defendant by surprise. We find no prejudicial error in the ruling of the trial court.
Defendant further objected to the admission of certain physical exhibits contending that the proof failed to connect the exhibits with the defendant or with the crime and, further, he contends that the evidence was insufficient to establish guilt beyond a reasonable doubt.
Jack Guarin testified that he was a garage owner and did business under the name of Guarin Standard Service and Cafe. On January 22, 1972, George Robbins, the defendant, came into the garage at about 5:30 or 6:00 P.M. complaining about a car which defendant had purchased from an employee of the witness. The witness identified exhibits 1, 2, 3, 4 and 5 as tools belonging to him and being in his garage on January 22 when he locked the doors and went home. He also identified a Fram filter box (exhibit 7) and a catalog (exhibit 8) as having been on the grinder in the building at that time at specific locations. On Tuesday or Wednesday, January 22, 1972, Mr. Guarin first met Mr. Robbins when he had sold him three tires and a wheel. They had then had a conversation about the garage doors being wired to a burglar alarm.
Early Sunday, January 23, 1972, a window was discovered broken out of the garage and at about 8 o'clock the witness went down to see what was missing and found the safe open, the money gone. The tools (exhibits 1 through 5) were missing. The Fram filter box and the catalog had been moved to the floor but were still in the building. These two exhibits were delivered to the sheriff. There was a foot print on the Fram filter box which was not that of the witness.
A few days later the witness went with the sheriff and deputies to a residence at 215 E. Walker St., in Macomb, Illinois, where he identified the tools (exhibits 1 thru 5) found in the basement as his.
The sheriff, John Bliven, identified the tools as first seen by him at defendant's house and testified that he put them in his evidence locker after tagging each tool. Exhibit 6 was identified as a box returned from the FBI Laboratory and it had contained various exhibits which had been sent to the FBI for examination. Exhibits 9 and 10 were the boots removed from defendant when he was arrested. Exhibit 11 was the registered mail receipt received when the package was mailed to the FBI Laboratory. Exhibits 12 and 13 were two boots found on a shelf on a stairway going to the basement of defendant's home.
The next witness to testify was Thomas A. Delaney, an agent of the Federal Bureau of Investigation, who since 1953 specialized in examination of shoe prints, a technique similar to fingerprint identification. He had compared two sets of boots with the full print on the Fram box and the partial print on the catalog. He made a positive identification as to the source of the shoe print on the box stating that he was of the opinion that the print was from a pair of boots marked exhibits 9 and 10 (the boots defendant was wearing at the time of his arrest). He could not make a positive identification of the partial print on the catalog due to lack of clarity in the print. He had received the exhibits by registered mail from the sheriff in exhibit 6 (box). Exhibit 16 was an inked impression of the heel of exhibit 10, and exhibit 17 was the inked impression of the sole of exhibit 9. The impressions were made by Mr. Delaney.
Stanley Carman, a deputy sheriff, next testified that permission was given by defendant to search his house and that exhibits 1-5 (the tools) were found there in the basement. That an a.w.o.l. soldier, Robert Mandel, and a girl, Julie, were in the house.
Jack Thurman, another deputy, testified that exhibits 9 and 10 were the boots defendant was wearing when arrested and that exhibits 12 and 13 were another pair of ...