People v. Palmer
| Decision Date | 30 November 1962 |
| Docket Number | No. 37287,37287 |
| Citation | 26 Ill.2d 464,187 N.e.2d 236 |
| Parties | The PEOPLE of the State of Illinois, Defendant in Error, v. L. C. PALMER, Plaintiff in Error. |
| Court | Illinois Supreme Court |
Westbrooks, Holman and E. F. Johnson, Chicago (Claude W. B. Holman, Alvin A. Turner and Evelyn F. Johnson, Chicago, of counsel), for plaintiff in error.
William G. Clark, Atty. Gen., Springfield, and Daniel P. Ward, State's Atty., Chicago , for defendant in error.
Defendant, L. C. Palmer, otherwise called Henry Palmer and Andrew Clinton, was indicted by the Cook County grand jury for the crimes of burglary and receiving and concealing stolen property. He was tried by the court without a jury, found guilty of burglary, and was sentenced to a term of from 1 to 4 years in the Illinois State Penitentiary.
By writ of error defendant seeks reversal, and assigns as error that the evidence was wholly insufficient to support the finding and judgment of the court, and that there was a fatal variance between the indictment and the proof. Alternatively, he seeks a new trial because of numerous errors allegedly occurring at the trial.
The alleged burglary took place on August 1, 1960, at the premises of the Monroe Calculating Machine Company, Inc., at 1130 South Michigan Avenue in the city of Chicago. The only evidence placing the defendant at or near the scene of the alleged burglary was the testimony of one Nathaniel Yancey who was indicted with the defendant and prior to this trial had pleaded guilty and been sentenced to the Illinois State Penitentiary where he was confined at the time of his testimony in this case. Yancey identified the defendant and testified that he had known him under the name of L. C. Palmer for about 4 years. On August 1, 1960, he saw the defendant at the defendant's home and at the suggestion of Palmer, Yancey went with him in Palmer's car to the Monroe office. This was then about 2:00 A.M. on August 2. Defendant parked his car in an alley behind the office and Yancey went in through an open door and got 20 adding machines which he put in the trunk and on the seats of the defendant's car. At some point prior to this, although the record is unclear as to the precise time, Palmer had agreed to pay Yancey $500 for his part in the activities. This was denied by Palmer. No money was ever paid. The defendant stayed in the car, according to Yancey, and they then drove back to defendant's apartment. Defendant went in and got one Riccardo Freeman who was also indicted with Yancey and Palmer, and the three of them carried the machines into the apartment excepting for 4 machines which Yancey took with him in a taxicab and had with him at the time of his arrest. The officer who arrested Yancey about 2:30 A.M. on August 2, testified that there were 4 adding machines on the floor of the cab, and these machines were subsequently identified by the office manager of Monroe as machines taken from the Monroe Company. About 1:30 on the morning of August 3 the arresting officer together with three other officers went to the apartment of the defendant and knocked for admission. When no one came, they went back into the street and saw lights in the apartment, and Freeman, who was known to the police and Yancey as Fleming, left the entrance of the apartment building and told the police that he had come from Palmer's apartment. Fleming then called one Twillie to let the police in and Twillie did admit them to the apartment where the police found in the living room an adding machine in a paper bag which was later identified as the property of the company. The evidence indicated that Twillie, who testified for the defendant, shared the apartment with the defendant and had shared other apartments with him. The office manager of Monroe identified the 4 machines found in the possession of Yancey and the 1 machine found in defendant's possession as being property of the Monroe Company.
The defendant testified in his own behalf and testified that his name was L. C. Fingers and that he had never gone under the name of Palmer and that he had left Chicago prior to August 1 to go to Idlewild, Michigan, with his girlfriend, Shirley Clinton, and returned to Chicago on August 3 and then left in September to go to visit his father in Missouri and stayed there until December 1, 1960. About December 13 or 14 his attorney left a message that he was wanted by the police and he went to the Hyde Park police station and surrendered himself. He denied that he ever went anywhere with Yancey, and particularly denied going to the Monroe office or taking any machines or helping Yancey unload machines and that there was no adding machine in his apartment on August 1 or any other time. Shirley Clinton, defendant's girl friend, testified that she met the defendant on July 29 at Idlewild, Michigan, and that they returned on August 3; that she had known the defendant under the name of L. C. Fingers for 5 years. Riccardo Freeman testified that he met Yancey at his apartment about a block from the defendant's apartment on August 1, and Yancey had asked him to come down to the alley and help him move some machines. Freeman went with him and took a machine into the stairway to the back of where defendant lived. This apparently was the machine which the officers found in the apartment. He denied having anything to do with the burglary.
Herman Twillie testified that he had never seen Yancey at Fingers' home, that he knew to L. C. Palmer but he knew a Henry Palmer and that Fingers was not in the apartment on either August 1 or August 2. He rented his bedroom from Fingers and paid him rent for it.
As to defendant's contention that there was a fatal variance between the allegations and the proof, we note that defendant was indicted under the name of L. C. Palmer, otherwise called Henry Palmer, otherwise called Andrew Clinton. There was no testimony excepting that of Yancey that defendant was known as L. C. Palmer. Throughout defendant's testimony he maintained that he was L. C. Fingers and not L. C. Palmer. Defendant argues that he cannot be indicted under one name and convicted under another name and states that his counsel said nothing and did nothing to warrant the trial court in deciding that this point had been waived. We do not agree. The record indicates that at the arraignment on January 5, 1961, his counsel stated 'This is the case of Mr. L. C. Palmer who is also called L. C. Fingers, Indictment No. 60-2604.' On that day defendant's attorney entered his written appearance for L. C. Palmer. In People v. Goldberg, 287 Ill. 238, 244, 122 N.E. 530, we held that on a motion in arrest of judgment the defect of a misnomer could be reached since that motion opened up the entire record for examination and reaches any defect apparent therein. In that case defendant had entered his plea of not guilty under his correct name of ...
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