APPEAL from the Circuit Court of Montgomery County; the Hon.
PAUL M. HICKMAN, Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Following a jury trial in the circuit court of Montgomery County, defendant, Albert J. Buffington, was found guilty of the offense of burglary and was sentenced to a term of imprisonment of five to 15 years. He appeals.
One issue is presented for review: whether the trial court erred in refusing defendant's tendered instruction on accomplice testimony (Illinois Pattern Jury Instructions, Criminal, No. 3.17 (1968)).
On October 14, 1975, the Roller Derby Skate plant in Litchfield was burglarized. The burglary was discovered after firemen succeeded in extinguishing a fire in the plant which apparently was deliberately started. Several vending machines were found to have been pried open and emptied of their change. Defendant was initially charged with arson in connection with this occurrence as well as with burglary; however, the arson charge was dismissed for lack of probable cause after the preliminary hearing.
An important witness for the State in defendant's burglary prosecution was Bill Canter. Defendant contends that the record shows that Bill Canter was an accomplice in the burglary and that the court therefore should have given his tendered cautionary instruction concerning an accomplice's testimony (IPI Criminal No. 3.17).
Bill Canter testified that on the night in question he was in Library Park in Litchfield. The defendant came by, struck up a conversation with him and invited the witness to take a walk. It was "pretty well dark" when they reached the Roller Derby Skate plant. The defendant suggested to Canter that they should try to break in. According to Canter, he tried to talk defendant out of the idea. Defendant checked several doors located on the east and west sides of the building. They were locked. Defendant then proceeded to the north side of the building and tried a fiberglass loading dock door. This door was also locked. Defendant kicked it a couple of times and then reached into his pocket. Canter, who was about four feet from defendant, then heard a considerable amount of noise which sounded as if defendant were cutting the door. Canter told defendant to stop for a minute since his activities were too noisy and likely to bring the police.
When defendant finished cutting, it appeared as if he had his arm inside the door. Defendant said he "could not reach" and asked the witness if he could reach his hand in. Canter refused, replying that his arm probably was not long enough. Canter explained in his testimony that he did not want to do it, that he was trying to keep Jim (defendant) out of trouble. Canter subsequently heard the approach of a car and warned the defendant. The defendant hid, but Canter ran away.
Canter further testified that he saw the defendant in the park the following day and asked him if he had got the job done the previous night. The defendant said he had not and told the witness not to say any more about it.
On cross-examination, Canter testified that he had been granted immunity from prosecution in exchange for his testimony. This is confirmed by the record. An order was entered on the day of trial granting him total immunity from prosecution as provided for in section 106-1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 106-1 et seq.). In addition, Canter testified that an Illinois State trooper told him that he would be charged with the burglary if defendant "got out of it." Canter further stated that defendant had quite a bit of change in his pocket prior to their going to the Roller Derby Skate factory.
On redirect examination, the State's Attorney elicited answers from Canter indicating that he is a friend of defendant, that he did not really want to testify against him but that he did not have much of a choice.
Portions of the testimony of State's witnesses Edwin and Peggy McClarty were probative of the issue of defendant's guilt also. The McClartys testified that they left a tavern in order to observe the fire at the Roller Derby Skate plant. Upon their arrival, they saw defendant helping firemen get hoses off the truck and into position. Mr. McClarty, who had been drinking for about three hours at the tavern, shared a bottle of wine with defendant as they watched the fire. The McClartys subsequently agreed to go drinking with defendant. Although there is some discrepancy between the accounts of Mr. and Mrs. McClarty as to when the following occurred, they both testified that at some point during the drinking excursion defendant recovered a considerable amount of change from a particular spot near a tree at a place known locally as either "Hobo Junction" or the "Jungle." This money was used to purchase wine and beer. Defendant told them that he had won the money gambling at the junction. Later in the evening, while the three were riding around drinking, joking and talking, Mr. McClarty asked defendant how the fire at the plant got started. Defendant responded that he had started it. Mrs. McClarty, who felt she was less intoxicated than her husband, confirmed that defendant made this statement, but testified that she believed he was merely joking since he made it sound as if it were a big joke and laughed after giving the answer.
The refused jury instruction (IPI Criminal No. 3.17) reads as follows:
"An accomplice witness is one who testifies that he was involved in the commission of a crime with the defendant. The testimony of an accomplice witness is subject to suspicion, and should be considered by you with caution. It should be carefully examined in light of the other evidence in the case."
This instruction is properly given if a witness is an accomplice and testified on behalf of the State implicating the defendant. (People v. Howard, 130 Ill. App.2d 496, 263 N.E.2d 633; People v. Riggs, 48 Ill. App.3d 702, 363 N.E.2d 137.) The reason ...