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People v. Franz





APPEAL from the Circuit Court of McHenry County; the Hon. JAMES H. COONEY, Judge, presiding.


A McHenry County jury found Gerald H. Franz, defendant-appellant, hereinafter referred to as the "defendant," guilty of burglary and theft of under $150. He was sentenced to three years' probation, with the conditions that he serve a term of 12 months' periodic imprisonment and pay a fine of $1,000. The defendant has appealed.

Three issues are raised by the defendant in his appeal. First, he contends that the evidence was insufficient to prove him guilty beyond a reasonable doubt. Secondly, he contends that the trial court erred when it refused to give a jury instruction he tendered, and, thirdly, the defendant contends that the trial court was in error when it allowed into evidence the defendant's 1970 burglary conviction.

After reviewing the record and weighing the arguments presented, it is our finding that the judgment of the circuit court of McHenry County should be affirmed.

An indictment was handed down on November 14, 1975, charging the defendant with the crimes of burglary and theft of less than $150. The charges arose from the February 1, 1975, burglary of the Pantry Restaurant in Crystal Lake, Illinois. The defendant demanded a jury trial, which was commenced December 1, 1975.

The fact that the Pantry Restaurant had been burglarized was not disputed at trial. However, the defendant denied committing the crime. The defendant testified that he believed he was at the home of his sister-in-law on the date of the crime.

The State's principal witness at trial was James Coss. Coss testified that he was at the Town Tap, a Crystal Lake tavern, on the date of the burglary. At approximately 9 p.m., the defendant arrived at the Town Tap. He and Coss played the bowling machine while they had a couple of drinks. The topic of their conversation eventually turned to possible burglary targets. The two men then left the tavern and drove around Crystal Lake for approximately one hour before returning to the Town Tap at about midnight. Coss testified that it was at this time that they decided to burglarize the Pantry Restaurant, which is next to the Town Tap, because it was convenient and because there were few people around at that time of night.

Coss' testimony continued to the effect that about midnight he and the defendant went to the alley behind the Town Tap and the Pantry Restaurant. According to Coss, the defendant then tried to pry open a rear window to the restaurant. Failing in that effort, the defendant threw a rock through a rear window. The two men then crawled through the broken window into the kitchen of the restaurant. While in the restaurant, according to Coss, the defendant crawled from the kitchen to the front of the restaurant to check the cash register for money. The defendant found no money in the cash register and returned to the kitchen of the restaurant where he and Coss searched through drawers for money. They found a cigar box containing change and a green bank bag containing currency. Coss testified that they then exited the restaurant by the broken window and drove off to divide their loot, which amounted to approximately $70.

Coss also testified in regard to his prior relationship with the defendant and his dealings with the police. In 1967, the defendant, Coss and two others were convicted of a burglary. The three others received probation, while Coss received a sentence of three to six years in prison for what was his first felony conviction. Coss testified that he had held a grudge against the defendant for about a year and a half, but lost that grudge as he learned a trade in prison. In 1972, Coss' wife was killed in an automobile accident. Coss had difficulty adjusting to the loss of his wife and developed an amphetamine habit which he still had at the time of the burglary of the Pantry Restaurant. Coss testified that he supported this habit by selling drugs to others.

Further testimony revealed that on two separate occasions in the summer of 1974, Coss had sold narcotics to an undercover agent of the McHenry County Sheriff's Department. Sometime after these two sales, Coss was picked up and questioned by the McHenry County State's Attorney. The State's Attorney released Coss on the condition that he attempt to gather information that would be of assistance to an on-going homicide investigation McHenry County was conducting. When Coss failed to report back to the State's Attorney, the State's Attorney became concerned. However, before any action to locate Coss was taken, the State's Attorney was informed that Coss had participated in a recent string of four burglaries. Coss was subsequently apprehended in Carpentersville. It was after this arrest that Coss implicated the defendant in the February 1 burglary of the Pantry Restaurant in Crystal Lake.

However, before Coss talked to the State's Attorney and implicated the defendant, he arranged for immunity from prosecution for the four burglaries in which he had been involved, to have two of the three drug charges pending against him nolle prossed and to plead guilty to the third drug charge. In exchange for having four unsolved burglaries removed from his files, the State's Attorney agreed to recommend that Coss be given a sentence of one year's probation and periodic imprisonment for the one offense to which he pleaded guilty. The jury was made fully aware of Coss' arrangement with the State's Attorney during the course of the trial.

Through the testimony of a restaurant employee, the restaurant owner and a Crystal Lake police officer, the State presented evidence that a burglary had been committed and that the physical evidence was generally consistent with the testimony of James Coss.

The defendant testified in his own behalf. He asserted that he had not participated in the burglary. He testified that he thought he was at the Hanover Park home of his sister-in-law on the night in question. He could not be certain of the exact date. However, he was certain that it was between January 31, 1975, when his brother-in-law was laid off, and November 3, 1975, when his brother-in-law applied for unemployment compensation.

The testimony of the defendant's wife and sister-in-law corroborated that of the defendant, even to the point of being uncertain ...

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