APPEAL from the Circuit Court of Tazewell County; the Hon.
SAMUEL G. HARROD, III, Judge, presiding.
MR. PRESIDING JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
Defendants appeal judgments of conviction of arson (Ill. Rev. Stat. 1979, ch. 38, par. 20-1(a)) entered upon jury verdicts and the sentences imposed. Upon denial of post-trial motions, Cross was sentenced to 7 years and Hunt was sentenced to 3 years and 6 months in prison. Defendants urge numerous claims of error.
A tavern owned by Peggy Artman was set afire at approximately 3 a.m. on August 11, 1978. A son of the owner, who was doing inside cleaning, heard the sound of an explosion and discovered the fire. The owner went to the tavern when advised of the fire, and there she indicated to the police the names of several possible suspects, including the defendants. The defendants had spent several hours at the tavern on the evening of August 10, and were leaving as the owner returned shortly before midnight. Following the fire, a dented five-gallon can without a cap for the spout was found on the roof of the tavern at the area of the fire.
An essential part of the case for the prosecution is the identification of the defendants as the purchasers of a quantity of gasoline which was placed in a five-gallon can. The can was described as battered or dented and without a cap for the spout.
The identification of the defendants was made by a witness, Liggons, who was the night attendant at an Owens gasoline station in the neighborhood. The record shows that this station was one of two stations in the community which were open all night, and the only one that had sold gasoline placed in a container on that night shift.
Liggons testified that at about 1:30 a.m. on August 11, gasoline was purchased for an older model automobile driven by a woman accompanied by two men. Defendants admit being the male occupants of that automobile. Although defendants testified concerning the event without stating a specific time, the context of their testimony suggests that the purchase was made shortly after leaving the Artman tavern.
Liggons testified that the same two men and woman returned to the station at about 3 a.m. and purchased gasoline which was placed in a metal can. Since the spout had no cap, he stuffed it with paper towels and the can was placed in the car. Liggons identified the gasoline can introduced into evidence as being the same can, or very like the can he had filled for the two men. The witness agreed that the appearance of the can was changed by smoke and scorching, but he believed that it had the same dented appearance as the can that he filled. The defendants deny returning to the station to purchase gasoline on this last occasion, and each presented alibi testimony.
Liggons identified the defendants as the two men who purchased the gasoline for both the automobile and for transporting in the can under the following circumstances: Bassett, a policeman, reported to the police station when called concerning the fire. By reason of information given to him, he prepared a panel of six photographs of individuals, including each of the defendants. He then went to the Owens station and showed the panel of six photographs to Liggons. The latter identified the defendants from the photographs in the panel, and at the trial made an in-court positive identification of the defendants as the men who purchased the gasoline both for the automobile and the can.
A truck driver, Wesselmann, testified that he was repairing his truck at approximately 3 a.m. at a place 200 feet east of the tavern. He observed a light-colored older model car drive up and stop, and two men left the automobile. The driver, who appeared to be a woman, then drove away. The two men, carrying a large can, proceeded to the back of a building and later he saw a puff of smoke from the roof of the tavern. He did not see any fire. He advised the police of his observations after he learned of the fire.
A police officer, Salmon, testified that shortly after 3 a.m. he received radio information concerning the fire and thereupon searched for an older model car of a light color. At a point approximately five blocks from the tavern he stopped an automobile which appeared to match the description. The defendant Cross was present in the car as was his companion, Candice Karnes. The occupants identified themselves to the officer as requested and granted permission to search the car and the trunk. Although he specifically sought the smell of gasoline, he detected no such odor. He then released the car and occupants.
It is first contended that the defendants were not proved guilty beyond a reasonable doubt. The argument is bottomed upon the hypothesis that the evidence was entirely circumstantial, that there were gaps and weaknesses in the prosecution witness, and that credible alibi evidence was presented.
The argument that the witness, Liggons, failed to describe certain tattoos, the clothing of the defendants, and was confused as to the color of the automobile is essentially irrelevant for the reason that the presence of the defendants at the filling station to purchase gasoline for the Karnes' automobile was admitted. There is testimony descriptive of the five-gallon can being used as a container for gasoline purchased from Liggons, and that can is identified as being the one found at the scene of the fire. A witness near the scene identified an automobile substantially matching that used by defendants and Karnes. Two men who left the car were observed carrying a large can near the tavern while a driver, believed to be a woman, drove away. Defendant, Cross, and Karnes were observed to be in the automobile a short distance from the fire shortly after the fire was discovered.
• 1, 2 A conviction may rest upon circumstantial evidence and the inferences drawn therefrom. (People v. Fletcher (1978), 72 Ill.2d 66, 377 N.E.2d 809.) Indeed, the crime of arson is by its very nature secretive and usually incapable of direct proof. (People v. Smith (1976), 44 Ill. App.3d 237, 357 N.E.2d 1320.) A conviction based on circumstantial evidence may be sustained so long as the proof is of a conclusive nature and tendency leading, on the whole, to a satisfactory conclusion of guilt and producing a reasonable and moral certainty that the accused and no one else committed the offense. (Fletcher.) The triers of fact are not required to search out possible explanations compatible with innocence and elevate them to the status of reasonable doubt. People v. Huff (1963), 29 Ill.2d 315, 194 N.E.2d 230.
While the evidence outlined was circumstantial, it was nevertheless proper evidence from which the trier of fact could determine defendants' guilt. In addition to the facts in evidence here summarized, the jury had the opportunity to ...