People v. Thomas

• Court: Illinois Supreme Court
• Writing for the Court: BRISTOW
• Citation: People v. Thomas, 170 N.E.2d 543, 20 Ill.2d 603 (Ill. 1960)
• Decision Date: 28 November 1960
• Docket Number: No. 35947,35947
• Parties: PEOPLE of the State of Illinois, Defendant in Error, v. James THOMAS, Plaintiff in Error.

Page 543

170 N.E.2d 543

20 Ill.2d 603

PEOPLE of the State of Illinois, Defendant in Error, v. James THOMAS, Plaintiff in Error.

No. 35947.

Supreme Court of Illinois.

Nov. 28, 1960.

Martin G. Reiffin, Stuart T. Edelstein, Chicago, for plaintiff in error.

William L. Guild, Atty. Gen., Springfield, 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.

BRISTOW, Justice.

On writ of error this case reaches us to review a conviction of defendant in the criminal court of Cook County, where he was found guilty of burglary on a bench trial and given an indeterminate sentence of seven to ten years in the Illinois State Penitentiary. In addition to proceeding here on a writ of error from the original judgment of conviction, defendant has petitioned for a writ of error to review a judgment of the trial court denying a post-conviction petition. The writ of error and the petition under the Post Conviction Hearing Act have been consolidated for disposition.

Defendant in this case is known as James Thomas. He began his life of crime when just a boy of 17 as Eddie Parks, in 1937 it was Eddie Campbell, again in 1941 it was Eddie Campbell. In June 1942 it was Eddie Stewart, in May 1942 he was given three to fifteen years in the penitentiary at Jackson, Michigan, on a burglary charge; and again on July 8, 1947, a five-year-to-life sentence on a burglary charge as Eddie Stewart. The proof that defendant had spent the major portion of his life in penal institutions appeared on the hearing on mitigation and aggravation of penalty.

Defendant was charged with the burglary of a tavern and store designated as 'Tuxedo Liquors' and taking $287 in currency. The defendant alleges that the proof adduced at the trial was insufficient to justify a finding of guilty; that the State's Attorney was unfair in his argument to the court; and that there was a fatal variance between the indictment and the proof as to the identity of the building which was burglarized. In the post-conviction petition, defendant alleges that his appointed counsel was incompetent. Defendant also contends that the trial judge at the post-conviction hearing erred in refusing to read the record of the evidence at the original trial.

Briefly summarized these are the facts: At about 3:20 a. m. on May 26, 1956, a burglary alarm was set off in a cocktail lounge located at 133 East 39th Street in the city of Chicago. James McGarvey, a special policeman for the ADT Burglary Alarm Company, and police officers Henry Clisby and Wesley Barnes responded to the call. McGarvey and Clisby remained in front of the tavern and Barnes went around to the rear. Two shots were fired from the rear, and when McGarvey and Clisby ran back to investigate, they found officer Barnes with defendant under arrest and woulded, his right arm having been struck by one of the bullets fired by officer Barnes. On the day of the trial officer Barnes was ill and the prosecution obtained permission from the court that they proceed with the trial and if his testimony seemed essential, he could be called later. A search of defendant produced $25.17, of which about $6 was in silver. The owner of the cocktail lounge checked his cash register and found that about $276 was missing.

In addition to the money, there was found on the defendant a chisel, the width of which was identical with the marks on the woodwork where entrance to the building was accomplished. The chisel marks also reflected the same peculiarities found on the chisel. The defendant said no one else was in the building with him. The defendant alone testified in defense and his explanation of his presence at the scene is not impressive, nor was the trial court convinced of its validity. It seems that Thomas was employed in a nearby barber shop and that a friend of his awakened him at his house at 3 a. m. and reported that the shop had been burglarized. Defendant said that he was in the process of investigating this report when he was shot in the arm and arrested. We are of the opinion that the evidence was sufficient to establish defendant...