APPEAL from the Circuit Court of Cook County; the Hon. JOSEPH
A. SOLAN, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT, AS MODIFIED UPON DENIAL OF PETITION FOR REHEARING:
Rehearing denied December 3, 1974.
Defendant was indicted for the offenses of arson (Ill. Rev. Stat. 1967, ch. 38, par. 20-1), attempt (arson) (Ill. Rev. Stat. 1967, ch. 38, par. 8-4) and possession of explosives (Ill. Rev. Stat. 1967, ch. 38, par. 20-2). He was found guilty by a jury on the charges of attempt (arson) and possession of explosives. He was sentenced to terms of not less than 10 nor more than 20 years on the charge of possession of explosives and not less than 10 nor more than 14 years on the charge of attempt (arson), the sentences to run concurrently.
On appeal, defendant contends that (1) the State failed to prove defendant's guilt beyond a reasonable doubt in that it did not prove defendant knowingly possessed an explosive or intended to use it in an attempt to commit arson; (2) the trial court erred in denying defendant's motion to suppress a piece of pipe found in the trunk of defendant's car; (3) the trial court erred in denying defendant's motion to suppress a pipe and fuse allegedly found in defendant's bedroom; (4) the trial court erred in permitting the State to ask a hypothetical question as to the extent of damage the explosion would cause; (5) the sentencing on both the charge of possession of explosives and attempt (arson) was error in that both arose out of the same course of conduct; and (6) the minimum sentence imposed exceeds that required by the Unified Code of Corrections. The facts are substantially as follows:
At approximately 10 P.M. on July 19, 1968, a night watchman, Surgel Jones, observed three persons running from the vicinity of the storage area of the Hartigan Oil Company, 4856 South Morgan Street, Chicago. Shortly thereafter, Jones observed a small fire directly beneath Hartigan's oil tanker No. 93. He noted that the valve on tanker No. 93 was open, and that oil was draining onto the ground. Jones first attempted to douse the flames with water but only succeeded in spreading the fire. He then smothered it with a cushion. A partially burned flare was found in the vicinity. Jones did not report this occurrence to the police or fire department that night.
Early the next morning, Jones showed the area of the fire to a Hartigan official, Felix Ostrowski. The two men discovered beneath the tanker a length of scorched pipe with a fuse protruding from one end. Ostrowski then called the police, who later identified the length of pipe as a bomb.
Also, on the night of the occurrence, at approximately 10:45 P.M., Sergeant Fred Herr of the Chicago Police Department, on routine patrol, was driving a marked squad car south on Aberdeen Avenue near its intersection with 48th Street. A large vacant lot is located on the southeast corner of the intersection which backs up on the Hartigan Oil Co. yard. At that time, Herr observed a 1966 black Buick parked on the south side of 48th Street, facing east. He also observed defendant walking in the vacant lot about 30 feet from the Buick.
Sergeant Herr flashed his light on defendant and saw a hairline reflection from a shiny, cylindrical object which appeared to be 20 to 24 inches in length and approximately 1 inch in diameter. Defendant turned abruptly and walked back to his car. He opened the trunk and placed the object in the trunk and locked it. Herr, whose original observations were made from a distance of approximately 100 feet, was about 12 feet from defendant's car at this time.
As Herr approached the Buick, he noticed two other individuals inside the car. He made a call for assistance and then got out of his squad car with his service revolver drawn at his side. He asked defendant for identification, and defendant produced a traffic citation, in lieu of a driver's license, and a car registration indicating the car to be his mother's. Assistance arrived, and the two individuals in the car were ordered out, and they and the car were searched. When defendant was asked for the keys to the trunk, he replied that he had given them to Paul Martin, one of the others in the car. Martin then told Herr that he must have dropped them. Minutes later, the officer found the keys in some grass near the passenger's side of the car. He then opened and searched the trunk and found therein a pipe bomb. Defendant and his companions were taken into custody and formally charged with possession of explosives.
Detective Edward Sheridan testified that 2 days later he and Officer Vernon Baker went to the home of defendant's parents, with whom defendant resided. They went there in the belief that the Johnsons might have had some information regarding Paul Martin, one of those arrested with defendant. The Johnsons were aware that their son was in custody but were uninformed as to the charges which the officers then explained. Sheridan testified that Mrs. Johnson expressed concern as to the possible existence of a bomb in the house and, according to the officer, asked them to look around. Mrs. Johnson testified that the police asked her if they could look around and that she and her husband agreed to let them search but didn't specifically ask them to look for bombs.
In any event, Mrs. Johnson accompanied the officers in the search of the house, where Sheridan testified he found in a bedroom used by defendant a piece of pipe and a length of red fuse which was about 8 or 8 1/2 inches long. Mrs. Johnson testified that no pipe or red fuse was taken from the house but that a short grey firecracker fuse was found in the bedroom. The officers subsequently asked Mrs. Johnson to sign a consent form for the search, which she did voluntarily.
At trial, expert testimony indicated striking similarities between the fuse and the powder found in the pipe bomb under the tanker and the one found in the trunk of defendant's car. Similarities also existed in the style of construction of the two bombs, and the fuse allegedly found in defendant's bedroom was the same type as that used in the two pipe bombs.