People v. Faginkrantz

• Decision Date: 01 December 1960
• Docket Number: No. 35726,35726
• Citation: People v. Faginkrantz, 171 N.E.2d 5, 21 Ill.2d 75 (Ill. 1960)
• Parties: PEOPLE of the State of Illinois, Defendant in Error, v. Alfred FAGINKRANTZ, Plaintiff in Error.
• Court: Illinois Supreme Court

Page 5

171 N.E.2d 5

21 Ill.2d 75

PEOPLE of the State of Illinois, Defendant in Error, v. Alfred FAGINKRANTZ, Plaintiff in Error.

No. 35726.

Supreme Court of Illinois.

Dec. 1, 1960.

As Modified on Denial of Rehearing Jan. 18, 1961.

Morris w. Ellis, Chicago, for plaintiff in error.

William L. Guild, Atty. Gen., and Benjamin S. Adamowski, State's Atty., Chicago (Fred G. Leach, Asst. Atty. Gen., and Francis X. Riley, and James R. Thompson, Asst. State's Attys., Chicago, of counsel), for defendant in error.

SCHAEFER, Chief Justice.

The defendant, Alfred Faginkrantz, was indicted in the criminal court of Cook County for the unlawful possession of burglary tools. He pleaded not guilty, waived a jury trial, and was found guilty and sentenced to the penitentiary for a term of not less than one nor more than two years. On this writ of error to review the judgment of conviction he contends that the trial court erred in denying his motion to suppress certain tools found in his possession; that those tools were not designed for breaking and entering; that the State failed to prove beyond a reasonable doubt that he possessed the tools with a felonious intent; that the court improperly disregarded the testimony of a defense witness and that certain comments and question by the trial judge and by the prosecutor deprived him of a fair and impartial trial.

Upon the motion to suppress the defendant offered the testimony of one of the arresting police officers who testified that he and another officer came upon the defendant in an alley at 4:30 in the morning. As the police car pulled up, the defendant stepped from behind the rear end of his automobile, which was parked behind a plumbing supply firm, with the motor and lights turned off. The officer testified that because there had been several burglaries and attempted burglaries in the alley, they asked the defendant for identification. He told them that he had no evidence of ownership of the car because he had only recently purchased it. His driver's license showed that he did not live in the vicinity, and he admitted that he had served time in the penitentiary for burglary. He told the officers that he was returning from a tavern in the neighborhood and had stopped in the alley to defecate. The officer then told the defendant that they were going to take him to the police station for investigation. The defendant asserted his innocence and, in response to the officer's request, told them that they could search the car. They did so, and in the trunk they found two air oxygen tanks, an air gauge and an acetylene gauge, a cutting torch, an axe, a hacksaw and a sledge hammer.

The defendant suggests that his consent to the search of his car was not a true consent, but rather a submission to the authority of the police officers, citing People v. McGurn, 341 Ill. 632, 173 N.E. 754, and People v. Lind, 370 Ill. 131, 18 N.E.2d 189. We find it unnecessary, however, to analyze the quality of defendant's consent, because in our opinion the evidence was properly admitted regardless of his consent. It was obviously impractical for the officers to attempt to obtain a search warrant. The defendant's unlikely explanation of his presence in an alley far from his home at 4:30 A.M., and his inability to produce any indicia of ownership of the car, coupled with his admitted criminal record and the history of burglaries in the alley, gave the police reasonable cause to believe that he was committing a crime. What the constitution prohibits is an unreasonable search and seizure, and the circumstances of this case do not establish that the search was unreasonable. The trial court did not err in overruling the motion to suppress. People v. Watkins, 19 Ill.2d 11, 166 N.E.2d 433; cf. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327; Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134.

Upon the trial the second arresting officer corroborated the testimony of the first. For the defense, Nicholas T. Orlando testified that he was the owner of a 'front-end rebuilding automobile organization' and that the equipment in the defendant's car belonged to him. He also stated that the defendant had been working for him at the time of the arrest, and that one or two weeks earlier he had given the equipment to the defendant in order to take damaged front ends off cars that he had recently purchased. Furthermore, he said, the defendant had used a car to haul the equipment because 'his truck was bad.' The defendant testified, and repeated what he had told the arresting officers. He denied that they had looked for evidence to corroborate his story, and he denied that he intended to break into any building.

The statute provides that 'whoever is found having any pick-lock, crow, key, bit or other instrument or tool, with intent to break and enter any building, ship or vessel, with intent to commit the crime of murder, rape, robbery, larceny, or other felony, shall be imprisoned in the penitentiary not less than one nor more than two years.' Ill.Rev.Stat.1959, chap. 38, par. 87. We have held that to sustain a conviction under this statute the prosecution must prove (1) that the tools are adapted and designed for breaking and entering; (2) that the defendant possessed them with knowledge of their character; and (3) that he intended to use them for breaking and entering. People v. Esposito, 18 Ill.2d 104, 107, 163 N.E.2d 487; People v. Taranto, 2 Ill.2d 476, 482, 119 N.E.2d 221; People v. Taylor, 410 Ill. 469, 473, 102 N.E.2d 529.

The defendant insists that there is no proof that the equipment that he possessed was adapted to breaking and entering, and he urges that...