People v. Johnson
| Decision Date | 18 August 1967 |
| Docket Number | Gen. No. 50583 |
| Citation | 88 Ill.App.2d 265,232 N.E.2d 554 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Joseph JOHNSON, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Daniel P. Ward, State's Atty., Chicago, for plaintiff-appellee, Elmer C. Kissane, E. James Gildea, Asst. State's Attys., of counsel.
OFFENSES CHARGED IN THE INDICTMENT
(1) Burglary. 1
(2) Possession of burglary toools. 2
JUDGMENTAfter a jury trial, defendant was found guilty of both charges and was given concurrent sentences of 10 to 25 years for burglary, and 1 to 2 years for possession of burglary tools.
(1) The charge of burglary was not proved beyond a reasonable doubt.
(2) There was neither evidence of burglarious intent nor evidence to connect the burglary tools to the burglary charged, so the State failed to prove the offense of possession of burglary tools.
(3) The court permitted inadmissible evidence to go to the jury.
(4) There was prejudicial error in the State's closing argument.
(5) The State's instruction given on circumstantial evidence was erroneous, and it was error to refuse defendant's instruction on circumstantial evidence.
but the kitchen door was open. Mary could not be sure she had locked it before she took her shower.
At 11:41 P.M. on July 9, 1964, he responded to Mary Lund's call concerning a prowler. In an unmarked police car he drove to the intersection of Dinsmore Road and Rosewood Avenue in about a minute and a half. There he noticed an Oldsmobile parked on the west side of Rosewood, south of Dinsmore. He called for a license check and ascertained that the license plates had been issued to a James Highland of Wilson Avenue, Chicago, for use on a Chevrolet. Officer Krueger drove past the Oldsmobile but saw no one in the car. He turned around and parked behind the Oldsmobile. It was dark at that location. He had been watching the car for about three minutes, when he saw the car light go on. He radioed for assistance and then pulled his car to the front of the Oldsmobile and saw a man standing beside it. He approached the man and asked him what he was doing there. The man replied that he was driving by when his car broke down and stalled. He identified himself by his driver's license as Joseph Johnson, 1030 Sheridan Road, Winnetka, at which address he had formerly been employed. Officer Wallace arrived just as Officer Krueger began to question Johnson. The latter told Krueger that he had recently purchased the Oldsmobile and had transferred license plates from a Chevrolet which he had bought with those plates. Johnson said that he was en route from his place of employment at 195 Maple Hill Road, Glencoe to his home at 1322 Sedgwick in Chicago when he became lost and his car broke down. He stated he had come up Tower Road, made a turn and ended up on Rosewood. Tower and Rosewood do not intersect, however, and Tower Road is about a quarter mile from the corner of Dinsmore and Rosewood. Defendant was dressed in a black suit, white shirt, black tie, black loafers, and wore no socks. The night was warm, the streets dry, and the ground damp with dew. Defendant was arrested for 'fictitious plates' and was taken to the police station where a search of his person revealed a wallet with currency in his left rear pocket and a half dollar and pennies in his right front pocket. Officer Wallace found two Kennedy half dollars in defendant's right rear pocket. On cross-examination Officer Krueger related that defendant told him that his car had a vapor lock. The Oldsmobile was parked about a half block from the Lund home. There were no other cars in the area. As far as Krueger was able to ascertain, defendant's story about the transferred plates was true. Under the front seat of the Oldsmobile was found a pint bottle half full of vodka, a small crowbar and a bolt puller, or lock puller.
He answered a call to assist Officer Krueger at the corner of Rosewood and Dinsmore at about 11:41 P.M. on July 9, 1964. When he arrived, he parked his squad car and walked up to Officer Krueger and defendant. Defendant wore a black suit, a white shirt, a tie, black loafers, and no socks. His shoes were highly polished and dry. Upon hearing 'something jingling,' Officer Wallace searched defendant's right rear pocket and discovered two brand new Kennedy half dollars. There was nothing else in that pocket. Wallace explained that he kept the half dollars at that time because they were found in a different location from defendant's other change. He then searched under the front seat of the Oldsmobile and found at the left-hand side a pry bar and a lock puller, as well as a bottle of vodka, half empty. In the center on the front seat he found a pair of pliers. The tools and the half dollars were admitted into evidence. Wallace stated, over objection, that one of the tools resembled a cable cutter but differed from a standard cable cutter in that
it had 'been ground down on either side of the tongs to make the opening wider, and thinner at the point.' Also over objection, Wallace stated that from his experience as a police officer, he knew that the purpose of narrowing the point of such [88 Ill.App.2d 273] an instrument was so it could be 'used to put on a lock, a round, tumbler type lock, and clamp down and twist the lock, pull the lock out.' In this condition the tool is known as a 'lock puller.' Wallace asked defendant why, if his car had been causing trouble, he had not stopped at a gas station at the corner of Tower and Linden which he had passed on the way. That station was open and was about five blocks away from the Lund home. Defendant said he was not aware that there was a gas station at that corner. He said his car had broken down but he did not know what the trouble was. Defendant did not tell him that his car had developed a vapor lock.
As he was reporting for duty on July 9, 1964, at about 11:40 P.M., he was informed that a burglary was in progress at 1014 Dinsmore Road, and proceeded to that location, covering the back door from the yard. He thereafter helped Officers Kruger and Wallace take defendant to the police station. The next morning, at about 6:00 A.M., Officers Jacobs and Krueger returned to the Lund home. They searched the area on foot and discovered a jewelry box containing jewelry, necklaces and rings, a box with a necklace in it, and a razor or hair-trimmer 'stacked in a pile' on the parkway by some bushes off Rosewood near Dinsmore. Just south of this location, at the driveway for the corner house, the officers discovered a transistor radio under the bushes. In the course of the search, the officers also found a pair of we green socks near the rear door next to the driveway of that corner house (on the southeast corner of Rosewood and Dinsmore, facing Dinsmore). The wet socks were in a covered garbage can underneath some newspapers which were dry. The grass in that area was wet with dew from the night before. Opposite the driveway of the corner house, about 15 feet west of the west curb line of Rosewood the officers also found a glove. The glove was later matched to another glove found underneath defendant's Oldsmobile when the car was moved the night before by another officer. The officers took the jewelry boxes, the razor and the radio to the Lund home, where Mr. and Mrs. Lund identified them as their property. The gloves and socks were not checked for ownership with anybody in the neighborhood. To get to the Lund home from defendant's automobile, you would have to walk across Rosewood Avenue and eastward.
He was the owner of the burglarized premises. On the evening of July 9, 1964, he and his wife went out to dinner, leaving his two daughters home alone. When he and his wife returned home at about 11:45 P.M., he found police cars at the house. Upon going to his bedroom, he found dresser drawers open and some things missing. He did not investigate thoroughly at that time, but noted that some jewelry was missing. On a fishing trip in Wisconsin he had obtained four Kennedy half dollars, two of which his wife had placed in a small cloth coin purse in her dresser drawer. The purse was there but the Kennedy half dollars were missing from the dresser drawer when he returned home from dinner that night. The half dollars taken from defendant and admitted into evidence were similar in appearance to those which had been in the dresser. After the police searched the premises for the burglary, they left. Officers Wallace and Jacobs returned the following morning at about 6:00 A.M. At this time Mr. and Mrs. Lund identified the jewelry boxes, jewelry, a transistor radio and a comb with razor blade...
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