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People v. Wirth





APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS J. MAHON, Judge, presiding.


After trial by jury John R. Wirth (defendant) was found guilty of burglary and sentenced from 4 to 12 years. In his appeal to this court, he contends the prosecution failed to overcome his affirmative defense of intoxication; the trial court unfairly refused to instruct the jury on defendant's theory; evidence of a bond forfeiture by defendant was improperly admitted to prove flight; the prosecutor indulged in unfair argument and defendant was denied due process of law when the trial court refused to dismiss the indictment which was secured as a result of abuse of the grand jury.

Maureen Moran testified that on the early evening of August 1, 1975, she, her husband and two children were at home. Through the window she saw a young neighbor talking to a man she later identified as the defendant. The boy pointed at her home. She heard pounding on the front door. She opened the door and saw the defendant. He kicked at the door and asked her repeatedly where her "old man" was. She screamed for her husband. She ordered the defendant out and closed the door. She heard kicking sounds again and defendant reentered. He said he would kill her and she picked up a chair for protection. She did not notice that defendant smelled of alcohol.

Thomas Moran heard his wife screaming. He ran to her assistance and physically pushed defendant out of the house off the porch and into some bushes. Moran told his wife to call the police. Defendant again attempted to enter the house and wrestled with Thomas Moran. The police arrived and defendant was handcuffed and removed.

One of the arresting officers testified that he responded to a police call. He saw defendant being held down on the grass. Although defendant was handcuffed he kicked the officer in the back of the head while in the squad car. This officer testified that he smelled alcohol on defendant's breath. In his opinion, defendant had been drinking. The officer so stated in his police report.

Alexander Kreydich testified for defendant. Kreydich had known and worked with defendant for some 5 or 6 years. He saw defendant on the afternoon of the day in question. Defendant was "upset." Defendant told him a certain police officer had killed defendant's friend and he would like "to get hold of" the officer. The defendant then went to visit a friend named Judy Lipuma. Early that evening Kreydich came to the place when defendant was being arrested. He noticed alcohol on defendant's breath. Defendant's speech was not "really coherent" and defendant slurred his words. Defendant staggered when he was taken from the squad car and put into a patrol wagon. At the police station defendant screamed and hollered. The witness thought the defendant "was drunk" or "bombed."

Judy Lipuma, 18 years old, next-door neighbor of the Moran family, had known defendant for 5 years and "dated" him steadily for about 2 months. She saw defendant during the early morning hours of August 1, 1975. Defendant was crying and "very upset" about the death of his friend. Early that afternoon she saw defendant drink almost a whole bottle of warm gin in about a half hour. This did not make the defendant sick. Defendant said he would "get" Officer Van Cura who had killed his friend. He used foul language concerning this officer. In her opinion, defendant was drunk that afternoon. He rocked back and forth and slurred his words badly. She saw defendant go next door to the Moran home and saw him on the front lawn. She ran over and helped to hold him down. She smelled alcohol on his breath. Other testimony and trial incidents will be described as necessary.


• 1 On the issue of intoxication, the Criminal Code of Illinois provides that "[a] person who is in an intoxicated or drugged condition is criminally responsible for conduct unless such condition * * * (a) [n]egatives the existence of a mental state which is an element of the offense; * * *." (Ill. Rev. Stat. 1977, ch. 38, par. 6-3.) It has been authoritatively held in Illinois that "voluntary drunkenness is no excuse for the perpetration of a criminal act; it may be used to negative intent and malice only where intoxication is so extreme that it entirely suspends the power of reason." People v. Huggy (1974), 19 Ill. App.3d 247, 252, 311 N.E.2d 355, and cases there cited. See also People v. Remon (1976), 40 Ill. App.3d 337, 340, 352 N.E.2d 374, and People v. Heiple (1975), 29 Ill. App.3d 452, 453, 330 N.E.2d 556.

• 2 The crime of burglary requires the act of entering or remaining in a building or vehicle together with "intent to commit therein a felony or theft." (Ill. Rev. Stat. 1977, ch. 38, par. 19-1(a).) In this regard, burglary differs from other crimes such as robbery which "does not require specific intent." (See People v. Banks (1979), 75 Ill.2d 383, 392, 388 N.E.2d 1244.) Consequently, the issue in the case before us is not the presence or absence of intoxication "but whether in the light of all the evidence relating to his intoxication he [defendant] had the requisite mental state * * *" to commit the crime with which he was charged. (Huggy, 19 Ill. App.3d 247, 252.) The law of Illinois has determined and consistently holds that "the question of whether or not the defendant was so intoxicated as to be incapable of forming the requisite intent to commit a crime is a question * * * for the trier of fact." People v. Fields (1978), 56 Ill. App.3d 1068, 1069, 372 N.E.2d 980.

• 3 In the instant case, there was evidence to show a lack of intoxication. On the other hand there was evidence to show that defendant had been drinking. There is also evidence which might well lead to the inference that defendant purposely and forcefully entered the Moran home with intention to obtain physical revenge against the police officer whom defendant considered responsible for the death of defendant's friend. In this situation, a question of credibility arose which it was the duty of the jury to answer. We cannot say that their verdict is so improbable or that the evidence in support of the verdict is so unsatisfactory as to justify a reasonable doubt of guilt and reversal of the judgment on this ground. People v. Benedik (1974), 56 Ill.2d 306, 310, 307 N.E.2d 382.


Defendant attempted to raise an issue of "automatism" in an effort to prove that his conduct was involuntary. Defendant tendered, and the trial court rejected, a specific instruction on this defense:

"A person shows automatism or involuntary behavior and is not criminally responsible for his conduct if at the time of the conduct he lacks substantial capacity to either appreciate the criminality of the conduct or ...

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