APPEAL from the Circuit Court of Peoria County; the Hon.
ROBERT E. MANNING, Judge, presiding.
MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:
Defendants Henry Humphrey and Marcus Mize appeal from their convictions of burglary entered after a jury trial. Each defendant was sentenced to a 3-year term of imprisonment.
Originally defendants were indicted along with Louis Howard. Prior to trial, however, Howard's case was severed because he had made a confession implicating defendants.
At trial Creston Dennis testified for the State that on August 15, 1979, he was in the process of moving into a house he had rented at 5220 Montclair in Peoria Heights. At 1:30 p.m. he locked the house and left to go to work. The electricity had not yet been turned on in the house. On his way home from work Dennis was stopped by police who directed him to the police station where he learned of the burglary at his home and then identified a stereo, a radio, some eight-track tapes, a car battery, and some clothing that had been in the house. Dennis testified that he had given nobody authority to remove these items.
Rose Chase, who lived across the street from Dennis, testified that at around 3 a.m. on August 16, 1979, she saw someone carry a large object from Dennis' yard to the trunk of a car parked in front of his house. Chase then telephoned the police. She looked out again, and the car was gone. Chase said she saw only one car in front of Dennis' house but conceded that there could have been others she did not see. A police dispatcher testified he received Chase's call at 2:56 a.m. and dispatched Officers Dotson and Gaskins to the scene.
Dotson testified that he arrived near Dennis' house about 1 minute after he received the radio dispatch. He observed a car about three houses down from Dennis' residence traveling away from it. He stopped the car. Mize was driving, and Humphrey and Howard were passengers. Dotson noticed a box containing an AM-FM radio in the back seat. He obtained Mize' consent to look in the trunk and found the stereo unit, the tapes, the car battery, and the clothing. Dotson asked Mize to whom these items belonged, and Mize replied that he had never seen them before.
Officer Gaskins arrived at the site of the arrest, and Dotson left to go to Dennis' residence where he found the back door open. The door jamb was broken. The front door was also open. The lights in the house were not working. Dotson found clothes and paper strewn around the house, and a crowbar in the living room.
Gaskins testified that he asked Humphrey about the clothes in the car. Humphrey replied that they were his, and that he had put them in his car to go to a wedding out of town.
For the defense, defendants Mize and Humphrey both testified. According to their testimony, at about 12:30 a.m. on that date in question Mize went to the house of Humphrey, his friend. The two listened to music and talked. Sometime later, Howard, who lived with Humphrey, arrived with two other men whom neither Mize nor Humphrey had seen before. A conversation took place about some items the two men wanted to sell. The five men then went to 5220 Montclair. Howard and the two men drove in one car, and defendants followed in Mize' car. When they arrived, one of the two unknown men went to the house. The rest of the men followed after a discussion at Mize' car.
One of the two unknown men had told defendants that the electricity was off because they were moving. When defendants walked up to the house, the front door was open. Inside Humphrey used a flashlight to look at the things for sale and paid one man $70 for some clothes, the stereo, some tapes, and a radio. Humphrey did not know whether the car battery or certain other clothing was part of his purchase. He testified that in order to determine if the pants were his size, he merely held a pair next to himself in the light of a flashlight. In any event, the items were carried to the car. The two strangers left in their car, and defendants, along with Howard, left about a minute later, and they were subsequently stopped by Dotson.
Mize testified that when Dotson asked him about the items in the trunk, Mize realized they were probably stolen so he told Dotson he did not know where they came from. Humphrey admitted telling Gaskins the clothes were his, but denied saying anything about going to a wedding out of town. Humphrey indicated that he said he probably would not be able to go to a wedding because he was arrested. He testified that the wedding was in Peoria.
The jury was given, inter alia, the following instruction without objection by the defense:
"If you find that the defendant had exclusive possession of recently stolen property, and there was no reasonable explanation of his possession, you may infer that the defendant obtained possession of the property by committing a burglary." (See IPI Criminal No. 13.21.)
The jury retired to deliberate at 2:50 p.m. At 4:03 p.m. the jurors sent the bailiff to the trial judge with a note ...