People v. Barber
| Decision Date | 01 July 1974 |
| Docket Number | No. 72--92,72--92 |
| Citation | 313 N.E.2d 491,20 Ill.App.3d 977 |
| Parties | PEOPLE of the State of Illinois, Plaintiff-Appellee, v. August Urban BARBER, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Ralph Ruebner, Richard Wilson, Elgin, for defendant-appellant.
Gerry L. Dondanville, State's Atty., Geneva, Clarence Wittenstrom, Jr., Elgin, for plaintiff-appellee.
The defendant was convicted of Burglary after a jury trial and sentenced to 7--15 years in the penitentiary, to be served concurrently with any sentence upon which he was serving time or on parole. He appeals, contending that the court committed reversible error in admitting a prejudicial photograph and in giving a non-I.P.I. instruction, entitling him to a new trial. He alternatively argues that the sentence was excessive and improperly based on matters outside the evidence.
The offense charged resulted from a theft in which various items including a white suitcase, a billford and a hand mixer were taken on September 17, 1971, from the Aurora home of Lucille McCarthy in her absence. There were no eye witnesses. The investigating officers testified that on September 24th following the burglary they stopped a car which defendant was driving for the purpose of serving an outstanding arrest warrant on one of the passengers.
The officers saw a white suitcase in plain view on the seat behind the driver which the officers recognized from their investigation of the McCarthy burglary. Both defendant and the passenger were arrested. Defendant signed a waiver to permit a search of his vehicle.
A wallet missing from the McCarthy home containing Mrs. McCarthy's identification was found on top of the dashboard. When the suitcase was opened, it was found to contain packs of various brands of cigarettes and a policeman's nightstick. The search of the car revealed items including flashlights, transistor radios, and various tools, none of which were identified as taken from the McCarthy home. However, a portable mixer and a portable typewriter identified as taken from the McCarthy home were also found in the car.
There was testimony that defendant regularly smoked one of the brands of cigarettes found in the suitcase; and that the same brand identified as Marlboro cigarettes, as well as Raleigh cigarettes, partially smoked, were found in the McCarthy home and outside near the broken window where the entry was made. Mrs. McCarthy testified that she lived alone in the house and did not smoke.
Defendant did not testify but his signed statement given to the police admitting that he and Mendiola committed the burglary was in the evidence.
Defendant's girl friend testified in his behalf that she saw some of the described stolen merchandise in the apartment of the passenger Joe Mendiola and that he exhibited acts of ownership. There was also testimony by the witness and defendant's mother, who claimed to have seen the car every day during the period, that none of the stolen merchandise was seen in the defendant's station wagon between the time of the alleged burglary and his arrest.
Under these circumstances the defendant contends that it was reversible error to give the following instruction:
'The Court instructs the jury that the recent and unexplained possession of stolen property by the defendant, if the evidence so shows, tends to establish his guilt, and is sufficient, of itself, to authorize a conviction unless the inference of guilt thereby raised is overcome by other facts and circumstances in evidence, so as to raise in the minds of the jury reasonable doubt of such guilt.'
Defendant argues that the instruction does not comply with the law because it fails to charge that the defendant had exclusive possession as a basis for the inference of guilt as set forth in I.P.I. Criminal sec. 13.21 (1968). He also urges consideration of Supreme Court Rule 451(a) (Ill.Rev.Stat.1969, ch. 110A, par. 451(a)) which requires that Illinois Pattern Jury Instructions-Criminal be used when applicable, unless the trial court determines that the instruction does not accurately state the law.
We note, however, that defendant failed to tender I.P.I. 13.21 and failed to object to the given instruction on Supreme Court Rule 451(a) grounds. Under these circumstances, the trial court had no duty to give that instruction and defendant waived the right to raise this issue on appeal. While there is some doubt from the record that the defendant objected to the instruction on the other specific grounds urged here, we cannot conclude with certainty that he failed to object and thereby waived his right to raise the issues on appeal. We will therefore consider his other arguments on the merits.
The inference of guilt from unexplained possession of recently stolen property has been long established. In Comfort v. The People (1870), 54 Ill. 404, 407--408, the court stated the rule that recent possession of stolen goods after the theft is sufficient to warrant a conviction unless the circumstances and other evidence so far overcome the presumption as to create a reasonable doubt of guilt. In Comfort, a recent pawnbroker's receipt in defendant's name was held sufficient evidence of defendant's possession of stolen property found in a pawnbroker's shop. (See also People v. Pride (1959), 16 Ill.2d 82, 89--90, 156 N.E.2d 551.) The presumption that the possessor of recently stolen property is the thief is an inference which the jury may be permitted to draw based on human experience and common sense from known events or circumstances. People v. Fiorito (1952), 413 Ill. 123, 128--129, 108 N.E.2d 455.
Defendant has cited a number of cases in which there is the statement that the possession must also be Exclusively in the defendant for the inference to be drawn. (E.g. People v. Urban (1942), 381 Ill. 64, 69, 44 N.E.2d 885; People v. Hawkins (1963), 27 Ill.2d 339, 341, 189 N.E.2d 252; People v. Davis (1966), 69 Ill.App.2d 120, 125, 216 N.E.2d 490.) Defendant argues that the authorities establish that the instruction must not only contain the reference to defendant's possession but must characterize the possession as 'exclusive'. And he further argues that the evidence for the defense that the passenger Mendiola exhibited acts of ownership when the property was seen in his apartment and that the property was not seen in his car prior to the day of the arrest raised a reasonable doubt that defendant ever had sole, personal and exclusive control of the property. Thus he claims that at the very least the evidence raised a question of fact which entitled the jury to be properly instructed as to exclusive possession, citing People v. Khamis (1951), 411 Ill. 46, 53, 103 N.E.2d 133. However, defendant's arguments are unpersuasive.
It is clearly established that the fact that the element of possession is controverted is not a basis for refusing to give the recent possession instruction. See People v. Woods (1963), 26 Ill.2d 557, 562, 188 N.E.2d 1; People v. Boulahanis (1964), 50 Ill.App.2d 440, 442, 200 N.E.2d 372; People v. Harris (1972), 53 Ill.2d 83, 85--87, 288 N.E.2d 873.
Further, defendant's argument based on the statement found in some of the cases that possession must be shown to be Exclusively in the defendant is not well founded. On analysis this does not appear to be an elemental rule but one dependent on the circumstances of each case.
Proof of the possession by the defendant is the key if the inference is to be made on the basis of possession of recently stolen property. If the jury is required to speculate as to whether defendant in fact had the possession which would be a circumstance of his guilt, it would be unreasonable to draw the inference based on the speculation. See People v. Bullion (1921), 299 Ill. 208, 213, 132 N.E. 577; People v. Hawkins (1963), 27 Ill.2d 339, 341, 189 N.E.2d 252; People v. Urban, 381 Ill. 64, 69, 44 N.E.2d 885.
Thus, if possession by a single defendant is in issue, the possession must be shown to be in him and not in someone else. (Watts v. The People (1903), 204 Ill. 233, 245, 68 N.E. 563.) But if the circumstances show that a defendant possessed the recent stolen property either singly or jointly with others, the inference of guilt is warranted and 'exclusiveness' of possession is not rebutted by merely...
To continue reading
Request your trial
-
People v. Nims, 85-1707
...creates an inference that the possessor knew the articles were stolen or that he may have been the thief. (People v. Barber (1974), 20 Ill.App.3d 977, 979-80, 313 N.E.2d 491.) Whether the absence of the possession of recently stolen property by an accused creates a nonincriminating inferenc......
-
People v. McClendon
...it is a non-IPI instruction waives review of the issue where defendant failed to offer the IPI instruction. (People v. Barber (1974), 20 Ill.App.3d 977, 313 N.E.2d 491.) However, the waiver rule may be modified where a grave error occurred or where waiver will result in denial of a fundamen......
-
People v. Tyson
...jury may be permitted to draw, based on human experience and common sense, from known events or circumstances. (People v. Barber (1974), 20 Ill.App.3d 977, 979, 313 N.E.2d 491; People v. Fiorito (1952), 413 Ill. 123, 128-29, 108 N.E.2d 455.) If circumstances show that a defendant possessed ......
-
People v. McIntosh
...jury may be permitted to draw based on human experience and common sense from known events or circumstances.' People v. Barber, 20 Ill.App.3d 977, 979--980, 313 N.E.2d 491, 494. In addition, it was considered well-settled by the court in People v. Davis, 69 Ill.App.2d 120, 125, 216 N.E.2d 4......