Appeal from the Circuit Court of Sangamon County; the Hon.
JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
Defendant, Charles W. Cookson, was charged in the circuit court of Sangamon County with the offense of armed robbery in violation of section 18-2(a) of the Criminal Code of 1961. (Ill. Rev. Stat. 1979, ch. 38, par. 18-2(a).) He was tried to a jury and convicted and following a sentencing hearing, he was sentenced to 6 years' imprisonment.
Defendant's sole contention on appeal is that the trial court erred in giving a jury instruction consistent with Illinois Pattern Jury Instructions, Criminal, No. 13.21 (2d ed. 1981) (IPI Criminal). We do not agree.
At defendant's trial it was determined that his brother had, while armed with a pistol, robbed a Huck's Convenience Store in Springfield, Illinois. The robbery was witnessed by a police officer and a customer of Huck's. Defendant's brother ran to defendant's car, jumped in, and defendant then attempted to elude the off-duty police officer who was following in his pickup truck. Defendant and his brother were stopped and arrested. A large amount of money was found in defendant's back pocket.
Defendant, in a statement to the police which was presented in pertinent part to the jury, said that he did not know that his brother was going to rob the store, and that his first knowledge came when his brother jumped into the car and tossed a wad of money onto the front seat. The testimony was inconclusive as to the amount of money actually taken from the convenience store. However, there was no question that an amount similar to that found on defendant was taken. The denominations of the money were determined to include ones, fives, and $10 bills, but no $20 bills. The money taken from defendant matched these denominations.
The hat and sunglasses which defendant's brother had worn during the robbery, as well as the handgun, were removed from defendant's car upon his arrest.
Defendant presented no evidence and the State tendered a jury instruction to which the defense objected. Nevertheless, the trial court gave the instruction over defendant's objection. The instruction given was as follows:
"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 armed robbery. However, you are not required to draw that inference."
The instruction is taken from the 1968 edition of IPI Criminal, and modified. Apparently the second edition of IPI Criminal (1981) was not available at the time of trial.
Defense counsel's objection to the instruction was that there was no evidence that the money taken from defendant was in fact stolen, and therefore no evidence to support giving the instruction. The court noted that defendant had been in possession of the money. The court also noted that while no one from the convenience store had testified to the exact amount, the court believed that the instruction could be given because it did not require the jury to draw the inference.
Defendant again complained of the instruction in his motion for a new trial. During argument on the post-trial motion the court noted that he had suggested not giving that instruction. However, a review of the discussion revolving around it at the instruction conference reveals that the trial judge made no such suggestion. The court noted, at the hearing on the post-trial motion, that the instruction he had given was not published in the official pattern instruction text (1968 ed.); however, he gave the last sentence of the instruction in order to comply with People v. Housby (1981), 84 Ill.2d 415, 420 N.E.2d 151, cert. denied (1981), 454 U.S. 845, 70 L.Ed.2d 131, 102 S.Ct. 161.
The court also noted that the situation in the instant case was different from one in which the exact serial numbers on the bills could be correlated to the ones found in defendant's pocket. However, the court found there was sufficient corroborating evidence in the instant case in that defendant's brother robbed the store; jumped into his car; defendant attempted to elude the police; the weapon was found in defendant's car; and the money found in his pocket. We note also that defendant's own statement was corroborative of this.
At the time of defendant's trial Illinois Pattern Jury Instructions, Criminal (1968) was used. IPI Criminal No. 13.21 (1968) at that time provided as follows:
"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 [here insert name of crime charged]."
In an effort to satisfy the requirements of Housby, the trial court instructed the jury that they were not required to draw the ...