People v. Foster

• Citation: 123 N.E. 534,288 Ill. 371
• Decision Date: 18 June 1919
• Docket Number: No. 12713.,12713.
• Parties: PEOPLE v. FOSTER et al.
• Court: Supreme Court of Illinois

288 Ill. 371

123 N.E. 534

PEOPLE

v.FOSTER et al.

No. 12713.

Supreme Court of Illinois.

June 18, 1919.

Error to Circuit Court, Logan County; T. M. Harris, Judge.

R. R. Foster, James Clinton, and Albert Wehr were convicted of burglary and larceny, and bring error. Affirmed.Edmund Burke, of Springfield, and H. F. Trapp, of Lincoln, for plaintiffs in error.

Edward J. Brundage, Atty. Gen., C. Everett Smith, State's Atty., of Lincoln, and Floyd E. Britton, of Springfield (McCormick & Murphy, of Lincoln, of counsel), for the People.

CARTER, J.

R. R. Foster, James Clinton, and Albert Wehr were indicted by the grand jury of Logan county upon the charge of burglary and larceny. After a trial the jury returned a verdict finding them guilty as charged in the indictment, and they were sentenced to the Southern Illinois State Penitentiary for not less than one year nor more than 20 years until discharged according to law. From that judgment this writ of error has been sued out.

L. Burchett & Son, a partnership, were general merchants in the town of New Holland, in the western part of Logan county. They handled groceries, clothing, and furnishings for men and women, dry goods, boots and shoes, trunks, silverware, etc. On the evening of December 10, 1918, they closed and locked their store at about 9 o'clock. Stuart Robinson, a clerk, arrived to open the store the next morning at 6 o'clock, and discovered that the building had been burglarized and a large quantity of merchandise taken. He found on the sidewalk near the side door of the store three iron bars which had been taken from a railroad car standing on the side track of the Illinois Central Railroad Company about a block away, and the doors showed evidence of having been forced open by the use of these bars. Among the things taken from the building were a flat-top trunk, a basket containing three or four dozen eggs, and several bars of butter wrapped in white paper. The Burchett store faces south on Lincoln street, and Mason street runs along its west side. Two blocks east of Mason street another street runs parallel thereto, having a closed or blind end at the railroad tracks about a block south. Not far north of the closed end is located an establishment conducted by John Mangold where cement blocks were manufactured, and against the side of the building was a pile of the cement blocks. The tracks of an automobile could be recognized in Mason street, where the car had apparently been run up at right angles to the sidewalk on the west side of the store near the side door, which had been broken open. Mangold also found on the morning of December 11th tracks of an automobile in his cement yard, and on the face of the pile of cement blocks, up to which the tracks led, was a mark about 40 inches from the ground, and there were marks on the blocks at two places lower down. The clerk, Robinson, also found in this cement yard early that morning some dry goods and ladies' hand bags which contained the marks and tags of the firm. About 6 o'clock on the morning of December 11th plaintiffs in error Foster and Wehr came to the home of George Hobkirk, a farmer residing a few miles northeast of Williamsville, in Sangamon county, and asked to telephone, saying their truck had broken down up the road and they wanted to get some help. Foster talked to one Dawson in Springfield, and asked him to send an auto to pull them in. The broken car was then at or near a road intersectionabout a quarter of a mile east of Hobkirk's house. It had a top and the curtains were down. Foster told Hobkirk and his son his name and mentioned people whom he knew, apparently making correct statements as to these matters. Hobkirk's home is about 20 miles northeast of Spring-field and about the same distance southwest of Lincoln. Springfield is about 40 miles southerly from New Holland. One of the witnesses for the state, Fred Knollenberg, driving on the east and west road connecting New Holland and Lincoln about 7 o'clock in the morning of December 11th found some ladies' silk hose in the road. On Sample, a farmer, residing east of New Holland, found on the same morning, about 3 1/2 miles south and east of New Holland, a piece of crepe de chine. Another witness, McCarthy, on the same morning, about 6:40 o'clock, found in the road several miles east of New Holland two pairs of gloves. Some of these articles had on them marks and tags of L. Burchett & Son. The point at which Knollenberg found the silk hose was some 6 or 7 miles east of New Holland and almost due north of the place where plaintiffs in error were found on the morning of December 11th, about 6 o'clock, in the road near the home of Hobkirk. Wehr was employed by Jacob Kauth, of Springfield, as a deliveryman for his grocery store, located in the extreme north end of Springfield. Wehr lived in the city and kept his employer's car at the place where he lived. Kauth had owned the car, an Overland fitted with a truck body, for some six months, and had tried to run it in his delivery work, but was unsuccessful and had several accidents and therefore hired Wehr, who apparently was an experienced chauffeur, to run it for him.

Foster was the only one of the three plaintiffs in error who testified, and, with the exception of one other witness, was the only witness who testified as to the whereabouts of any of them on the night of December 10th. Foster stated that on the evening of December 10th he made arrangements with Wehr to meet him at 4:30 the next morning and go hunting rabbits when those animals got out into the road in the early morning; that he went to bed in his room about 1 o'clock and got up about 4 o'clock, went to the Ballard-Johnson Company's restaurant in Springfield, where he had previously made arrangements with Farnback, the man in charge, to have a lunch ready for himself and party at 4:30; that about that hour he called for the lunch, which was prepared, and took it with him in a basket and put it into the car when he met Wehr. The evidence is not clear as to where Clinton joined them, but evidently it was in Springfield. Farnback testified that Foster called for this lunch about 4:30 on the morning of December 11th. Foster stated that after the three people were in the car they drove north to Williamsville and went about a mile north of the place where their car later broke down, near Hobkirk's farm, and then, because Wehr wanted to get back to Springfield in time to go to work that day, they decided not to go any farther, and turned around and started south. He testified they were no nearer New Holland at any time on the night in question than a short distance from where the car was broken; that they had no merchandise of any kind in the car, and no basket except the one containing the eggs and sandwiches for their lunch; that there was nothing in the rear of the car at the time it was broken except a common box and a lap robe, upon which Clinton was sitting. Foster further testified they had shot but one rabbit before the car broke down.

When Foster went to Hobkirk's house and telephoned Dawson to send a truck out to haul them into town, Dawson promised to do so. Dawson had formerly been in the saloon business in Springfield, and was then running a soft drink place, and apparently had nothing to do directly with the auto business. He, however, called up Charles L. Adams, manager of a transfer company in Springfield, and asked him to send a truck out to the Hobkirk place and get the axle of a broken car. Adams directed one of his employés, Louis Newman, to go to the Hobkirk farm and bring in the broken axle. Newman, in a Ford car, went from Spring-field about 7 o'clock in the morning of December 11th, pursuant to the directions given by Adams, through Sherman and Williamsville, to the home of Hobkirk, and was there directed to the truck in question. He found it in the middle of the north and south road, headed south, near a road intersection. Wehr was walking up and down the road, and Foster got out of the car, telling Newman that the car was broken. There was another man lying down in the truck, immediately back of the seat, on something with a flat top, extending across the truck apparently next to the seat and about three inches above it. The truck had side curtains extending from the windshield to the rear, and had a rear curtain; all of which were down. It had one seat and the tool box was under the seat. Newman had occasion to use a wrench from the tool box, and held the curtain up, and also held the seat while one of the plaintiffs in error procured the wrench. He testified that while doing this he saw a market basket in front of the seat upon the floor of the car which contained three or four dozen eggs, and that the same basket contained three or four bricks of butter wrapped in white paper. He also testified that the box or trunk the man was lying on in the car was covered with a lap robe or black cloth, which also covered the contents of the car back of where the man was lying, and that the top of the thing that the man was lying on was two or three feet above the sides of the car; that the top of the contents of the car back of that extended about a foot above the sides of the car; that he could not see what the contents of the car were under the black covering. Newman further testified that, when he went out to where the car was, he understood from the instructions given him that he was to bring in a broken axle, and not to bring in the car, and that, when he was informed that he was to haul the car in, he stated that he could not do it with the Ford truck, as it was not big or strong enough, and that therefore he soon started back to Springfield. Foster rode with Newman as far as Williamsville, where he left the car, and Newman proceeded to Springfield. Newman testified that he saw Foster, as he got out of the car, put a revolver in his pocket.

Foster boarded a Chicago & Alton train that pulled...