APPEAL from the Circuit Court of Lake County; the Hon. JOHN L.
HUGHES, Judge, presiding.
MR. JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:
Defendants Hewitt and Cvetich were charged with burglary (Ill. Rev. Stat. 1975, ch. 38, par. 19-1) and arson (Ill. Rev. Stat. 1975, ch. 38, par. 20-1). The cases against the two defendants were severed. After a jury trial, Cvetich was found guilty of both crimes and sentenced to two to eight years in the penitentiary. Hewitt, who was also tried before a jury, was found guilty of burglary but not guilty of arson. He was given a sentence of from five to 15 years. Both defendants have appealed and their cases have been consolidated on appeal.
The evidence presented at both trials was substantially similar. On October 24, 1976, at 4:30 a.m. a fire and theft occurred at the law offices of Rosing & Carlson, Ltd., in Waukegan. The building and furnishings were almost completely destroyed. Early that morning, Officer Kramer of the Waukegan Police Department was sent to an intersection near the fire to direct and reroute traffic. Finding no traffic problem, the officer proceeded to the Universal Restaurant. Kramer inquired of the owner if anyone had recently entered the restaurant. The owner pointed out two men. Kramer asked these two men for identification and they identified themselves as Cvetich and Hewitt.
Later on the 24th of October, Cvetich was picked up for questioning. He was found to be in the possession of a letter opener and umbrella which Mr. Rosing identified as being in his office prior to the fire. Cvetich gave the police a statement concerning his involvement and knowledge of the fire and the burglary. As a result of this questioning, the police recovered additional items belonging to the law firm.
Captain Jack Stewart, head of the Waukegan Fire Protection Bureau, examined the premises after the fire was extinguished. He testified that there were four to six different points of origin for the fire and that in his opinion the fire was a result of arson.
At the Cvetich trial, defense counsel objected to the judge's instructing the jury on the accountability (Illinois Pattern Instructions, Criminal, No. 5.03 (1968)). The defendant asserted that the evidence showed that Hewitt alone was responsible for the fire. During the course of its deliberations, the jury requested that they be given a dictionary so that they could define the word "abet." After consulting with counsel for both sides, the judge refused the request for a dictionary.
During his trial, defendant Hewitt attempted to call his former co-defendant Cvetich as a witness. The trial court first had Cvetich questioned in chambers. When Cvetich indicated he would exercise his fifth amendment privilege, the judge did not allow Cvetich to be questioned in front of the jury.
Prior to trial, defendant Hewitt had moved to suppress certain statements he made to the police. There was conflicting testimony at the suppression hearing concerning Hewitt's arrest and subsequent interrogation. Waukegan police officers Kitchen and Repp testified that at 8 p.m. on October 24, 1976, they arrived at the home of the defendant's mother to serve an arrest warrant on the defendant. Hewitt answered the door and was given a copy of the warrant. The officers further testified that the defendant appeared normal to them. The defendant's mother informed the officers that Hewitt was a diabetic and would be in need of insulin in the morning. She was told to bring the insulin to the police station in the morning.
After transporting the defendant to the police station, the officers immediately began an interrogation. The defendant signed a waiver of rights form and then gave the officers a lengthy statement concerning his involvement in the burglary and fire. The statement was completed at approximately 10 p.m. Officer Repp testified that he then asked the defendant how he felt and Hewitt told him that his diabetes was acting up. The defendant was then transported to the hospital. After the defendant was taken to the hospital, Officer Repp typed up Hewitt's statement. The typed statement was signed by Hewitt the next day in the hospital in the presence of two other Waukegan police officers.
Hewitt testified that he arrived at his mother's home at approximately 9 a.m. on the morning of the 24th. He was sick because his diabetes was acting up and he went to sleep immediately. He awoke at approximately 1 p.m. and took his insulin. Hewitt further stated that at 4 p.m. he had symptoms of gagging, thirst, nausea, and dizziness. His mother also testified that the defendant looked very sick at that time and had been vomiting. Hewitt claimed that he still felt dizzy, weak, and light-headed when the officers arrived that evening. He and his mother informed the officers that he needed medical attention and the officers promised to get him that attention once he was booked. Hewitt stated that once questioning began he felt that he had to make a statement or he would not be taken to the hospital.
On arrival at the hospital, the defendant was taken to the emergency room and examined by Dr. Anil Gard. Tests revealed that Hewitt's blood sugar level was 355 milligrams per hundred milliliters of blood (normal is 80 to 120 milligrams per hundred milliliters) and that acetones were present in his urine. Dr. Gard testified that if this condition was left untreated, it could result in a coma or even be fatal. The defendant was admitted to the hospital, given insulin and fluids, and released at 9:15 a.m. on October 26, 1976.
On appeal defendant Cvetich contends that the arson charge against him was not proven beyond a reasonable doubt. Hewitt alleges that his statement to the police was involuntary and that the trial court erred when it prohibited Hewitt from calling co-defendant Cvetich to testify.
Defendant Cvetich does not contest his conviction for burglary, but asserts that his guilt for arson was not proved beyond a reasonable doubt. Cvetich is correct in his contention that mere presence or negative acquiescence at the scene of a crime cannot be the sole basis for criminal liability. (People v. Shields (1955), 6 Ill.2d 200, 127 N.E.2d 440.) However, unlike the cases cited by the defendant, the facts of the present case show that Cvetich was not merely present at the scene of the crime. Cvetich concedes he was guilty of the burglary that led to the arson. The evidence clearly shows a common decision by Cvetich and Hewitt to commit the burglary.
1 It is well settled that legal accountability under the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 5-2(c)) extends to any act committed by an accomplice in furtherance of a common design. (People v. Chavis (1967), 79 Ill. App.2d 10, 223 N.E.2d 196, People v. Nowak (1970), 45 Ill.2d 158, 258 N.E.2d 313, People v. Gregory (1976), 43 Ill. App.3d 1052, 357 N.E.2d 1251.) Thus Cvetich is legally accountable for arson even if, as he contends, the fire was started by Hewitt with no direct encouragement from Cvetich. The jury ...