People v. Smith

Decision Date18 March 1969
Docket NumberGen. No. 52575
Citation107 Ill.App.2d 267,246 N.E.2d 880
PartiesPEOPLE of the State of Illinois, Plaintiff-Appellee, v. Barnester SMITH, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

Gerald W. Getty, Chicago, Saul H. Brauner, Norman W. Fishman, James J. Doherty, Chicago, of counsel, for appellant.

John J. Stamos, Chicago, Elmer C. Kissane, James Veldman, Chicago, of counsel, for appellee.

McCORMICK, Justice.

The defendant, Barnester Smith, was indicted for theft of property of a value in excess of $150.00. He was tried before a jury, was convicted, and sentenced to a term of one to five years in the Illinois State Penitentiary. The only question before this court is whether he was convicted beyond a reasonable doubt.

Defendant was accused of stealing a 1965 Pontiac from in front of the owner's home at 7335 South Michigan Avenue, Chicago. The owner of the car, Robert Cummings, is the complaining witness in the case.

On July 10, 1966, at about 2:30 a.m., police officers in a passing squad car noticed an automobile parked in the alley at 6252 South Ellis Avenue. They checked the license number and found it listed on their 'hot sheet.' When they approached the car the defendant was sitting behind the wheel, and two men were coming to the car carrying barbecue which they were delivering to the defendant. The officers removed the ignition key from the car after determining that it would start the engine and would open the door on the passenger side of the car, then placed the defendant under arrest, taking him and the other two men to the police station. The two men were later released after questioning.

At the time the officers first came to the car the defendant denied that it was stolen and said it belonged to his uncle; that his uncle's name was Cummings, and that he lived at 73rd and Michigan. In the trial of the case he testified that he had not stolen the car, but that he had seen it parked in the same place in the alley for several days, and had sat in it to drink, rather than stand in the alley or drink in a tavern. He also testified that a police officer found half a bottle of whisky when he searched the car. This statement was denied by the police officer.

The car had been driven about 400 miles between the time it was stolen and the time of defendant's arrest. Defendant was searched at the police station after his arrest, and a gasoline credit card was found in his wallet, together with a purchase receipt bearing the license number of the stolen car and dated the day before the arrest. At the trial the defendant testified he had never put gasoline into the car and that he did not use a credit card.

At the time of the arrest of defendant no question was raised, or could be raised, that the car in question was stolen. It is the law that the possession of stolen property soon after its theft affords evidence of guilt and may be sufficient to create a Prima facie case. The presumption of guilt is one of fact arising from the accused's unexplained possession of recently stolen property where the Corpus delicti has been proved. People v. Norris, 362 Ill. 492, 200 N.E. 330. It is also the rule that where a defendant found in exclusive possession of stolen property attempts to explain it, he must tell a reasonable story or be judged by its improbabilities. People v. Meyers, 412 Ill. 136, 105 N.E.2d 746; People v. Williams, 86 Ill.App.2d 209, 229 N.E.2d 158. In People v. Pride, 16 Ill.2d 82, 156 N.E.2d 551 the rule is laid down that 'recent possession' may be as long as 25 days from the time of the theft.

In the case before us the defendant was proved to have been in exclusive possession of the car. The fact that the police officer testified to the finding of the credit card and the gas receipt in the defendant's wallet, together with his being found in the car at the time of his arrest, is sufficient. The evidence against the defendant was purely circumstantial. In People v. Marino, 95 Ill.App.2d 391, 238 N.E.2d...

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8 cases
  • People v. Daniels
    • United States
    • United States Appellate Court of Illinois
    • March 21, 1983
    ...possibility of the defendant's innocence or produce absolute certainty in the mind of the trier of the facts. (People v. Smith, 107 Ill.App.2d 267, 270 [246 N.E.2d 880] (1969).)" (33 Ill.App.3d 557, 560, 338 N.E.2d The trier of fact need not be satisfied beyond a reasonable doubt as to each......
  • People v. Brooks
    • United States
    • United States Appellate Court of Illinois
    • August 14, 1972
    ...by the jury because of its improbabilities. See People v. Moore, 130 Ill.App.2d 266, 269, 264 N.E.2d 582, 584 citing People v. Smith, 107 Ill.App.2d 267, 270, 246 N.E.2d 880; People v. Bullock, 123 Ill.App.2d 30, 34, 259 N.E.2d In addition to this mass of convincing circumstantial evidence,......
  • People v. Kilgore
    • United States
    • United States Appellate Court of Illinois
    • November 17, 1975
    ... ... Nov. 17, 1975 ...         [33 Ill.App.3d 558] Frank Wesolowski, Jr., Public Defender, Robert H. Heise, Deputy Public Defender, Wheaton, for defendant-appellant ...         John J. Bowman, State's Atty., Malcolm F. Smith, Asst. State's Atty., Wheaton, for plaintiff-appellee ...         SEIDENFELD, Presiding Justice ...         Following a bench trial defendant was convicted of theft exceeding $150 and of possession of a motor vehicle with a falsified identification number (Ill.Rev.Stat.1973, ch ... ...
  • People v. Lyones
    • United States
    • United States Appellate Court of Illinois
    • May 31, 1979
    ...attempts to explain his possession he must tell a reasonable story or be judged by its improbabilities. (People v. Smith (1969), 107 Ill.App.2d 267, 270, 246 N.E.2d 880, 881.) In a bench trial the trial court's determination of weight and credibility afforded the testimony of any witness wi......
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