APPEAL from the Circuit Court of Logan County; the Hon. JOHN
T. McCULLOUGH, Judge, presiding.
MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
On September 26, 1974, a burglary occurred on the premises of the Lincoln Pet Shop and Monument Company. A cylindrical floor safe was broken into and between $3000 and $4000 in cash, a coin collection, and travelers checks were stolen. The manager of the business gave the Lincoln police the names of all ex-employees who would have known the combination of the safe, including Janet Ware. Upon questioning, Janet Ware confessed to her participation in the burglary and implicated the defendant and another person she did not know.
Several Lincoln policemen testified regarding the physical evidence obtained at the site of the crime and as to the discovery of the burglary. Janet Ware then took the stand after being granted immunity and testified to the defendant's participation in the crime. She testified that on the evening of September 26, 1974, she, her husband, and her two children were at home when her sister, her sister's husband (the defendant), and another couple arrived. Her husband went to bed. After leaving to procure some liquor, the defendant and the other man returned and asked Mrs. Ware to accompany them to the Lincoln Pet Shop and Monument Company because they had broken into the premises and needed Mrs. Ware to open the safe. Mrs. Ware testified that the defendant had visited her at the business while she was employed there and had, on prior occasions, asked her about the security systems used and whether or not she knew the combination to the safe.
Mrs. Ware accompanied the defendant to the premises of the pet shop, entered the building on her hands and knees, opened the safe for the defendant and his friend, and then returned to the parked car. The three burglars then returned to Mrs. Ware's home where the spoils were divided. When the women remaining at the Ware home asked where she and the two men had been, a story was fabricated to explain their absence during the burglary.
The testimony of Janet Ware was the only evidence implicating the defendant in the commission of the burglary and theft. No physical evidence was found which connected him either to the scene of the crime or to its commission. No fingerprints were found, and tool marks removed from the safe were not found to match any tool found by the police. Janet Ware's testimony was corroborated by her remembrance of many of the physical details of the burglary, such as the condition of the safe before and after she arrived on the scene, the physical condition of the building, such as locks being punched out of the doors, and the testimony of her husband, who corroborated her testimony regarding the arrival of the defendant and his party. On cross-examination, defense counsel brought out certain inconsistencies between the statement Janet Ware gave to the police upon her confession and her testimony at the trial. These included the minor points of whether she was on the front porch or already in the car when the defendant informed her she was needed to open the safe, whether both the defendant and the unidentified coconspirator returned to the Ware home to bring Mrs. Ware to the scene of the burglary, and whether the coverup story to explain the disappearance of Mrs. Ware and the defendant was told before or after Mrs. Ware left her home that evening.
Defendant was indicted for burglary and theft and, following a jury trial, was convicted for those offenses. A co-defendant was also indicted but the indictment against him was severed for trial. Defendant was sentenced to a term of imprisonment of not less than 5 nor more than 15 years. Defendant appeals, first arguing that he was not convicted beyond a reasonable doubt.
• 1 Defendant's reasonable doubt argument is based on the fact that the only testimony of his culpability was given by his alleged accomplice, Janet Ware. Even though Ware's testimony concerning the actual burglary was corroborated only by her memory of the physical details of the burgled premises which could have been learned after the fact, even uncorroborated testimony of an accomplice may support a conviction. (People v. Dabbs (1938), 370 Ill. 378, 19 N.E.2d 175; People v. Nastasio (1963), 30 Ill.2d 51, 195 N.E.2d 144, cert. denied, 377 U.S. 911, 12 L.Ed.2d 181, 84 S.Ct. 1174.) That Janet Ware was confused as to certain minor details such as the places and times of conversation between her and the defendant does not change the viability of her testimony because such confusion affects only her credibility. The credibility of witnesses is for the jury. People v. Yonder (1969), 44 Ill.2d 376, 256 N.E.2d 321, cert. denied, 397 U.S. 975, 25 L.Ed.2d 270, 90 S.Ct. 1094.
The defendant testified as an alibi that on the evening in question he and his wife were at his sister's house for dinner. This testimony was corroborated by the testimony of his sister and also of a friend of the family who was also present at the sister's home that evening. On cross-examination, the defendant was asked about his answer to the State's discovery motion. In that answer, which was verified by the defendant, the name of Judy Spenard, the defendant's wife, was listed as a witness. Mrs. Spenard was never called to testify. In the opening portion of his closing argument, the prosecutor stated:
"We have to prove our case as you were told right from the beginning beyond a reasonable doubt. That means simply what it say [sic], beyond a reasonable doubt. I am going to sit down now but before I do so, I would like defense counsel to tell you and explain to you why Judy Spenard didn't testify in this case."
Defense counsel made no reference to this point in his closing argument. For rebuttal argument, the prosecutor stated that since defense counsel had not accepted his suggestion to explain why Judy Spenard was not called, he would make no further argument.
Defendant maintains that these comments by the prosecutor constituted reversible error. Under somewhat similar circumstances, the supreme court affirmed a conviction in People v. Blakes (1976), 63 Ill.2d 354, 348 N.E.2d 140. There, as here, defendant testified that he was at places other than the scene of the crime throughout the time in which the crime was claimed to have been committed. He did not call several persons whom he stated in cross-examination that he had seen at a tavern where he said he was at the time of the offense. In the opening portion of his closing argument, the prosecutor commented that these persons had not been called by defendant. The defense then responded that these witnesses might not remember the occurrence. In reply the prosecutor told the jury that the prosecutor had the burden of proving defendant's guilt but that the jury might consider that defendant did not call these persons to testify.
"`[I]t is our conclusion that though failure to call a witness or produce evidence may not be relied on as substantial proof of the charge, nonetheless, if other evidence tends to prove the guilt of a defendant and he fails to bring in evidence within his control in explanation or refutation, his omission to do so is a circumstance entitled to some weight in the minds of the jury, and, as such, is a legitimate subject of comment by the prosecution.'" 63 Ill.2d 354, 359-60, 348 N.E.2d 170, 174.
• 2, 3 The instant case differs from Blakes in that there the prosecutor prefaced his comments on the failure of the defendant to call certain witnesses by stating that the burden of proof remained on the State throughout the trial while in the instant case the prosecutor prefaced his comments by merely stating that the State had to prove its case beyond a reasonable doubt. At the conclusion of the arguments, the court properly instructed the jury that the burden of proof remained upon the State. We do not believe that the slight difference between the preface to the prosecutor's comments in the instant case and those in Blakes would have caused the jury here to believe that the defendant had any burden to prove his innocence. In any event, the court in Blakes did not ...