APPEAL from the Circuit Court of Cook County; the Hon. LOUIS
B. GARIPPO, Judge, presiding.
MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
The defendants, Eric R. Ehn, Louis Truelock and Fred Jenkins, were charged with unlawful use of weapons, in violation of section 24-1 of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 24-1), in that they knowingly possessed a shotgun with a barrel less than 18 inches in length; that they knowingly carried concealed, in an automobile, a revolver, and that they knowingly carried a revolver within 5 years of their release from a felony conviction. After a bench trial, all three defendants were found guilty on the shotgun counts and the counts charging possession of a revolver within 5 years of release from a felony conviction, and each was sentenced to a term of 3 to 10 years in the penitentiary. All three defendants have appealed.
On appeal defendants contend that they were not proven guilty beyond a reasonable doubt of knowledge of the presence of the two revolvers in the automobile; that defendants Truelock and Jenkins were not proven guilty beyond a reasonable doubt of knowledge of the presence of the shotguns in the trunk of the automobile and, further, that they did not have constructive possession of the shotguns; that the State failed to prove that the length of the barrels of the shotguns was less than eighteen inches; that the variance between the bill of particulars and the evidence resulted in prejudicial error; that the trial court erred in permitting certain exhibits to be introduced in evidence; and that the search of the automobile was illegal.
At the trial David William Schwieger, a police officer for the city of Chicago, testified that on May 27, 1970, he was working with his partner, Russell Lynn, in a marked police vehicle in the vicinity of 744 West North Avenue, Chicago, when he noticed a 1968 Dodge Charger being operated with a towbar across the back of the car so as to obscure the license plate. They stopped the automobile and talked to Eric Ehn, the driver, at the rear of his car. While he was talking, Schwieger noticed that the left arm of the person sitting in the right front seat moved to the rear of the vehicle, between the two bucket seats. Schwieger then looked through the rear window and saw the person's left arm come back a second time with a revolver in his hand. Schwieger identified Louis Truelock as the person who passed the gun to the rear.
Schwieger stated he yelled to Lynn that the occupants were passing a gun and ordered the three occupants out of the vehicle. Schwieger said that, as he guarded the four people, he noticed that Lynn found shotgun shells on the person of Eric Ehn. Schwieger then searched the rear of the vehicle and found two revolvers wedged between the rear seat and the door panel on the right side, covered with a sweater. He also found two knives and a bandaid case with an ignition-jumper kit in the glove compartment on the console, and a construction helmet containing a mask and a pair of rubber gloves on the floor in the right front section of the car where Truelock was sitting. Schwieger testified that these items were inventoried, together with two shotguns Lynn had found in the trunk.
Schwieger identified People's Exhibits Nos. 1 through 15. He said People's Exhibit No. 1 was a picture of the vehicle the defendants were riding in when they were stopped; People's Exhibit No. 2 was a picture of the defendants at the time they were arrested, wearing the clothes they had on when they were stopped; People's Exhibit No. 3 was a picture of the defendants, depicting the clothes they wore underneath their outer clothes; People's Exhibit No. 4 was a picture of defendants wearing the masks which were found in the automobile; People's Exhibits Nos. 5 and 6 were the two revolvers which were recovered from the automobile; People's Exhibits Nos. 7(a) and 7(b) were the two shotguns that were in the trunk; People's Exhibits Nos. 8(a), 8(b) and 8(c) were a helmet, a mask and a pair of rubber gloves found inside the automobile; People's Exhibits Nos. 9(a), 9(b) and 9(c) were three masks, specifically, stockings that were tied in a knot on the top with the bottom portion open; People's Exhibits Nos. 10 and 11 were two knives found in the console of the automobile; People's Exhibits Nos. 12(a) and 12(b) were a bandaid container found in the glove compartment of the automobile, with a wire for jumping ignitions; People's Exhibit No. 13 was a picture of all the items taken; People's Exhibit No. 14 was a number of .38-caliber bullets used in a handgun; and People's Exhibit No. 15 was ammunition found on Ehn for a .12-gauge shotgun.
Russell Lynn, a Chicago police officer, substantiated the testimony of Schwieger. Lynn also testified he searched the defendants after they left the automobile. On Eric Ehn he found shotgun shells, a nylon stocking and two sets of clothing. On Louis Truelock he found shotgun shells, ammunition for a .38-caliber gun and two sets of clothing. On Fred Jenkins he found .38-caliber ammunition and a nylon stocking which had been cut up. Lynn stated he then handcuffed the defendants, and Schwieger then searched their automobile; and that Schwieger recovered two revolvers, a plastic type of construction helmet, a piece of paper with holes cut in it, a bandaid can with some wires and clips on the end, and two knives. Lynn stated he opened the trunk and found two fully loaded sawed-off shotguns.
The trial court admitted into evidence People's Exhibits 1, 2, 3, 5, 6, 7(a), 7(b), 8(a), 8(b), 8(c), 9(a), 9(b), 9(c), 14, 15 and 16, but refused to admit People's Exhibits 4, 10, 11, 12 and 13.
Eric R. Ehn, one of the defendants, testified that on May 27, 1970, he drove his car to work. When he got through working, at about 8:30 P.M., he changed into his bike clothes levis and a motorcycle jacket and threw his work clothes into his trunk; and that he had possibly five sets of clothes from that week in his trunk, together with a large thick quilt and tools. Ehn further testified that, when he left work, he visited Truelock, another defendant, at Truelock's job site and helped Truelock fix his car. He put on another pair of pants over his levis because he did not wish to get them dirty. He said his car was parked directly behind Truelock's car, with the trunk left open, and that he could not see the trunk from where he was working.
Ehn also stated he and Truelock needed some parts for the car and so went to a girlfriend's house to get some money to buy the parts. Enroute they picked up Fred Jenkins and George Bidot, who were waiting at a bus stop at North Avenue and Wells Street, and he then proceeded west on North Avenue. He said Jenkins was seated behind him and Bidot (who was indicted along with the defendants, but was not tried with them) was seated on the right side of the rear seat. Ehn testified he was stopped by the police. He still had on his work clothes. He stated there was a bulge in the left front pocket of the jacket he was wearing, which was caused by an aluminum cigarette case he had in that pocket. Ehn further testified that while he was talking to Lynn, Schwieger stood in front of the squad car; and that Schwieger did not shout anything at any time. He said that after Lynn ordered the passengers out of the car, Lynn asked him for the key to the trunk and that he gave the key to Lynn. Ehn said Lynn could not open the trunk, so Ehn stuck the key in the lock and opened the trunk.
On cross-examination, Ehn stated Lynn did not find shotgun shells or a stocking with a knot tied in it on his person. He said he did not see any ammunition taken from Jenkins or Truelock. Although Schwieger searched the inside of the car, Ehn did not see him recover two revolvers. Nor did he see Schwieger recover any stockings, masks or knives from the car. Ehn identified People's Exhibits Nos. 2 and 3 as the extra set of clothes he wore that evening and the extra set of clothes Truelock wore that evening. He said that, before the trunk was opened, he never saw the two shotguns which were found in the trunk, and that he did recall Lynn finding the ammunition in the trunk.
Fred Jenkins testified that at about 10 P.M. on May 27, 1970, he was standing on the corner of North Avenue and Wells Street when he saw Truelock and Ehn in a car. He accepted a ride with them. He said that at 744 West North Avenue police officers stopped the car and searched all of the passengers. Jenkins denied he had any weapons or shells of any kind on him or that he had more than one set of clothes on at the time. He said that prior to the search by the police he did not know there were any revolvers or shotguns or ammunition in the car. The first time he knew of or saw the guns and shells was when the police searched the car.
Jenkins further stated that, when the police stopped the car, Ehn, the driver, got out of the car and walked back to the police officers. Schwieger then came up to the side of the car and put his head in the window on the driver's side and then Schwieger ordered everyone out of the car. Jenkins said Schwieger took his billfold, a handkerchief, and a pack of cigarettes. Jenkins denied having a black stocking, stating that the first time he saw the stocking was when he was forced to put it on by the police officers. Jenkins also stated the police officers did not take any ammunition or shells from him nor did he observe them take any from the other defendants. Jenkins said that when other police officers arrived to help, they stood between him and his friends, thereby hindering his view of the search conducted on the other defendants.
Jenkins also testified that when Schwieger searched the car, Jenkins did not see a revolver, but he heard Schwieger tell Lynn he had found one. When Lynn searched the trunk, Jenkins observed him as he discovered a blanket and two shotguns. He also observed Lynn when he ...