APPEAL from the Circuit Court of Hancock County; the Hon.
SCOTT KLUKOS, Judge, presiding.
MR. PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
Raymond Carel appeals to this court from a conviction, in a jury trial of the crime of burglary, with a consequent sentence of 3 to 10 years in the penitentiary. Defendant contends on appeal that he was unfairly prejudiced by the prosecutor's comments, in closing argument, with respect to defendant's prior burglary conviction.
We note from the record that Hamilton, Illinois, police officers were alerted to the burglary by a neighbor, who noticed three persons attempting to enter Bricker's service station through a window in the early morning hours of September 11, 1974. The officers arrived in three automobiles and found one of the large bay doors open. They subsequently discovered that defendant and a friend were in the men's restroom inside the station. A box of pennies was found scattered near the grease rack. Defendant was caught by one of the officers dropping a key on the floor. The key was later identified as the key to the cash register.
Defendant Carel testified that he and several friends had been driving to Keokuk when he lost control of his car and it ended up on the railroad tracks adjacent to the highway. He and one of the friends headed to Bricker's service station for the purpose of using a telephone to call another friend for help. This initial portion of defendant's testimony was corroborated by other witnesses, including police officers who made the arrest, who found the car on the tracks. Defendant also testified that the police drove up after he had made the phone call from the public booth on the station lot, while he was observing the unusual sight of one of the station's garage doors being open at that hour. Defendant complains that the police shoved him and his friend into the station and accused them of burglarizing the premises. He also stated that one officer found the cash register key on the floor and placed it in defendant's pocket, and that another officer kicked over the box of pennies which sat near the grease rack.
Defendant also testified that he had previously pleaded guilty to another burglary charge and had spent three years in the penitentiary on that conviction. Counsel for defendant in the closing argument made the following statements:
"Here is a man that spent three years in jail for burglary that he pleaded guilty to back in 1971.
Now you will be told the defendant is charged with the crime of burglary, and he had pleaded not guilty. Several years ago he pleaded guilty to a crime because he did it, and he paid his price to society, but you are to consider all of the facts and circumstances here, all of them.
Sins of the past are not to be visited upon him today."
In his rebuttal, the prosecutor (who had made no reference to defendant's prior conviction of burglary, in his opening argument) made the following reference:
"This defendant was convicted of burglary. The same charge he is before you on today. For the particular crime on trial in this case, the charges would again be burglary."
No objection was made to the comment by the prosecutor, nor was it relied upon as error in the post-trial motion filed by Carel after his conviction in the cause before us. Also there was no limiting instruction sought by defendant of the type of Illinois Pattern Instruction Criminal No. 3.13, which directs the jury to consider evidence of prior convictions only as it reflects on the credibility of the defendant.
1 As a general rule, in the words of People v. Lehman (1955), 5 Ill.2d 337, 342, 125 N.E.2d 506:
"The law distrusts the inference that because a man has committed other crimes he is more likely to have committed the current crime."
This principle, reaffirmed recently in People v. Manzella (1973), 56 Ill.2d 187, 198, 306 N.E.2d 10, cert. denied, 417 U.S. 933, 41 L.Ed.2d 236, 94 S.Ct. 2644, supports the rule that evidence of a defendant's prior crimes is not generally admissible, except to show motive, intent, identity, existence of a common plan, or credibility, where the evidence in fact lends itself to such proof. (People v. Lehman (1955), 5 Ill.2d 337, 342, 125 N.E.2d 506; People v. Stadtman (1974), 59 Ill.2d 229, 231, 319 N.E.2d 813.) We recognize that it is improper for the prosecutor to comment on evidence of defendant's prior conviction in a manner intimating that such prior conviction tended to prove his ...