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People v. Mcnair





APPEAL from the Circuit Court of Cook County; the Hon. EARL E. STRAYHORN, Judge, presiding.


Following a bench trial, defendant, Gregory McNair, was convicted of burglary and unlawful use of a weapon (Ill. Rev. Stat. 1977, ch. 38, pars. 19-1, 24-1(a)(10), 24-1(b)) and was sentenced by the trial court to a single term of one to three years in the penitentiary. *fn1 Defendant appeals, contending that the prosecution failed to prove him guilty beyond a reasonable doubt of the aforementioned charges because the possession of proceeds from a burglary was insufficient evidence to support such conviction and because the prosecution failed to demonstrate that when arrested carrying a loaded weapon, he was not in his own abode as required by statute.

At trial, Spurag Foster testified for the prosecution and stated that some time between 8 a.m. and 5 p.m. on February 2, 1977, his apartment, located at 7753 Cornell Avenue in Chicago, was burglarized; that his clarinet, two television sets, clothing, leather coat, sheepskin coat, camera and a large jar of money were taken; that he did not give permission to defendant to enter his apartment or to remove any property therefrom; and that the locks on his apartment door were intact when he left on the morning of February 2, but that when he returned at approximately 5:30 p.m., they had been broken.

Earl Tucker also testified for the prosecution and stated that he shared the aforementioned apartment with Foster. On the date in question, he left for work at approximately 5 a.m. and returned at 7 p.m. He indicated that his 30.06 hunting rifle, a .357 revolver and a .38-caliber revolver were taken during the burglary. He further testified that televisions, watches, rings, clothes, money and other items were also stolen; that he had not given permission to the defendant to enter his apartment nor to remove any property from it; and that subsequent to the burglary he went to the police station where he identified his 30.06 rifle and .357 magnum revolver.

Police Investigator James Green testified that while completing an arrest *fn2 in a resident hotel, located at 1540-1550 East 64th Street, at approximately 11:15 a.m. on February 2, 1977, he and Officer Weir observed a man pointing a rifle through a partially opened door. Green identified this man as Herbert Stroughter. The police officer then drew his weapon and entered the room where he saw Stroughter drop the rifle onto a bed. At this point, Green viewed defendant drop a loaded .357 magnum revolver to the floor and also saw a woman drop a .38-caliber revolver. The two police officers radioed for assistance and placed the people in the room under arrest. Officer Weir then took the guns to the station where he inventoried them. On March 10, 1977, Tucker came to the police station and identified the 30.06 hunting rifle and the .357 magnum revolver, which had been confiscated by the two police officers, as being the same weapons taken in the burglary of his apartment.

On cross-examination, Investigator Green testified that he had asked defendant whether he lived at the apartment in which he was arrested and that defendant failed to respond that he lived there. However, Investigator Green admitted that the police reports he prepared, as well as those prepared by his fellow officer, indicated that defendant's address was 1550 East 64th Street. No items other than the guns were taken from the hotel room because at that time Investigator Green was unaware of the prior burglary of Foster's apartment. However, Green indicated that coats, televisions, and stereos were in the room when he made the arrest and that when police officers returned the following day, the room was empty.

Officer Weir was also called as a witness by the prosecution and his testimony substantially corroborated the testimony given by Investigator Green.

Co-defendant Herbert Stroughter testified that he arrived at 1550 East 64th Street at approximately 11 a.m. on the date in question. Stroughter stated that he had gone to that hotel in order to visit a woman friend, who, as it turned out, was not present. On his way out of that building, Stroughter met some police officers who informed him they were looking for a Cecil Cooper. Another individual indicated that he knew where Cooper's girlfriend lived. The police officer asked this person and Stroughter to show him the location of her address and the two men then went with this officer to another location. However, the police officer then indicated that he already knew about that location and drove them back to the hotel. After Stroughter reentered this building, defendant called Stroughter upstairs, stating to Stroughter that he had something to show him. When Stroughter entered the room, which contained several other people, defendant asked him if he wanted to buy a "piece." There was a knock at the door, and, when Stroughter opened it, there were uniformed police outside. He then shut the door and asked if they had a warrant. The police officer stated that he did not need one, and ordered Stroughter to let go of the door. After a struggle took place, Stroughter and defendant were arrested.

It was stipulated that defendant had been convicted of the felony offense of bail jumping and that he had been released from the penitentiary for that conviction on November 5, 1975. After hearing this evidence, the trial court found defendant guilty of both burglary and unlawful use of weapons.

Defendant maintains that the evidence of his possession of the proceeds from a recent burglary does not support the inference that he committed burglary beyond a reasonable doubt. We cannot agree with this contention.

• 1 A burglary can seldom be proved by direct evidence of the actual breaking and entry. The inference of guilt, in most cases, must necessarily be drawn from other facts satisfactorily established. (People v. Francis (1935), 362 Ill. 247, 250, 199 N.E. 100.) Accordingly, it is well established that the recent, exclusive and unexplained possession of stolen property by an accused, in and of itself, gives rise to an inference of guilt which may be sufficient to sustain a conviction in the absence of other facts and circumstances which leave in the mind of the trier of fact a reasonable doubt as to his guilt. See People v. Owens (1962), 23 Ill.2d 534, 537, 179 N.E.2d 630, cert. denied (1962), 370 U.S. 947, 8 L.Ed.2d 812, 82 S.Ct. 1592.

• 2 In the present matter, the prosecution demonstrated that Spurag Foster's apartment was burglarized some time after 8 a.m. on February 2, 1977. The testimony of the two police officers also showed that defendant was in possession of part of the proceeds taken in the aforementioned burglary at noon the same day in a room of an apartment building, located approximately 15 blocks from Foster's apartment.

Defendant did not testify in this case; nor is there any evidence in the record which in any way attempts to explain his possession of the stolen guns. Since the prosecution demonstrated that a burglary occurred, that certain items were taken, that defendant was in possession of at least some of these items when arrested and that he was in possession of these items within a very recent period of time after the burglary took place, we feel that the prosecution has sustained its burden of proving defendant guilty of burglary beyond a reasonable doubt.

It is true that Investigator Green testified that no other items, besides the two weapons, were recovered from the apartment in which defendant was arrested. However, he did indicate that he observed clothing, coats, televisions and stereos in the room at the time of the arrest, but stated he did not attempt to recover these items because he was unaware of the burglary at that point. This court has held that "possession of only a part of the goods does not create a reasonable doubt" of guilt. ...

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