People v. Durham
| Decision Date | 28 December 1965 |
| Docket Number | No. 65-64,65-64 |
| Parties | PEOPLE of the State of Illinois, Plaintiff-Appellee, v. William E. DURHAM, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Peter M. Soble, E. Moline, for appellant.
Richard J. Stengel, State's Atty., Rock Island, for appellee.
This cause is before us on transfer from the Illinois Supreme Court.
Defendant, William E. Durham, appeals from a conviction and sentence following an indictment for burglary from the Rock Island County Circuit Court.
Defendant in this cause was indicted along with a Richard Smith for the burglary of a food market located in Rock Island, Illinois. After a plea of not guilty, Defendant was tried separately before a jury and a guilty verdict was returned. A motion for new trial was denied and Defendant and the co-defendant, who was tried separately and found guilty of the same offense, were sentenced to terms of not less than five years nor more than 30 years in the Illinois State Penitentiary.
It appears from the record that on November 11, 1961, at approximately 10:15 P.M., two police officers who had received a call that a light was out at the southeast door of the food market, went immediately to the store. The store building had been locked at 8:30 P.M.
An officer who approached the door at the east end of the south side of the building found it to be open about two feet and the light above it was not on. The door had been broken open and bore pry marks which appeared to come from a heavy instrument such as a screw driver. This was the door through which Defendants had entered the building. After the officers waited outside of the building listening for two to four minutes, one officer entered and checked the storeroom to the rear and east part of the building proceeding the entire distance to the northeast wall. He then went to the west part of the building, that is the store proper, and used the telephone to call for police assistance. The front of the store and the storeroom were fairly well lighted but the office which was about eight feet by ten feet in dimension and situated against the north wall of the building was dark. After the officer had finished telephoning, he heard a noise and went to check the office. He used his flashlight in the office and observed the Defendant William E. Durham crouched behind a safe in the southeast corner of the office and the co-defendant hiding behind some boxes stacked along the east wall. He asked the Defendants three or four times to stand up and hold their hands up but they did not comply. The officer then broke a window pane in the French door with his pistol and repeated the request. Another officer thereafter came in and assisted the first officer in handcuffing the Defendants. Neither Defendant explained his presence in the building to the officers.
The only money in the store was in the office safe. A few small drawers had been pulled out of a desk and there were some items from the drawers, such as Christmas Club books, lying around on top of the desk.
Defendant William E. Durham took the stand and testified that he and his partner Smith had been walking near the premises that night and were on their way to a tavern but lost their way. He stated they heard a noise like a door closing and saw a man running from a door in the food store so they went to investigate. He stated that they entered through an open door and their attention was first attracted to the French door that led to the office, and that he and his partner went into the office. Shortly thereafter, he observed a police officer who came into the building and searched it. Although Defendant Durham was acquainted with this officer he said nothing to him until after he and his partner were arrested. They did not explain their presence in the building to the police officers at any time after they were arrested. Defendant stated that he hid behind the safe fearing bodily harm. There was no evidence that any property had in fact been taken from the premises.
After the Defendant had taken the stand in his own behalf, the Trial Court permitted the reading into evidence of a prior conviction of Defendant over objection of his attorney. The State's attorney informed the Judge out of the presence of the jury, that the prior conviction was to be read for impeachment purposes only. Neither Defendant nor the prosecution tendered an instruction to the jury to the effect that the prior conviction was admitted into evidence for impeachment purposes only.
On appeal in this Court, Defendant contends, first, that the State did not prove intent beyond a reasonable doubt, and, secondly, that the failure of the Trial Court to inform the jury that the purpose of reading of Defendant's prior conviction of burglary into the record was for impeachment purposes only and that such failure constitutes reversible error even though no such instruction was tendered on behalf of Defendant.
On the basis of the record before us, it is apparent that the food market was forcefully entered on the night of the offense and that shortly thereafter, Defendant and his partner were found crouched behind the safe and some boxes in the store office. It was argued, and is possible under the state of the evidence, that Defendant entered the...
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