45 N.E.2d 653 | Ill. | 1942
Elmer Kreisler, Frank Leach and Chester A. Rosson, also known as Jack Rosson, were indicted in the circuit court of Fayette county for the crimes of burglary and grand larceny. The indictment consists of three counts. Of these, the first charges the forcible breaking and entry of a store building of Leman Philbrook and Julius Voelker, partners, doing business as Philbrook and Voelker, with intent to steal property of the partnership. The second count, in addition to charging the forcible breaking and entry of the building, alleges the theft of merchandise belonging to Philbrook and Voelker, having an aggregate value of $3232.50. The third count charges the larceny of the merchandise enumerated in the second count. Defendants were tried jointly, no one of them having made a motion for a separate trial. A jury found defendants guilty of burglary and larceny, as charged, and they were sentenced to imprisonment in the penitentiary for the indeterminate statutory terms for these offenses. The trial judge made an advisory recommendation as to defendants Kreisler and Leach that the minimum and maximum terms on the burglary charge be not less than fifteen and not more than twenty-five years, respectively, and as to defendant Rosson, five and fifteen years, and, on the larceny charge, as to all defendants, five and ten years, respectively, the sentences to run consecutively. Kreisler and Leach prosecute this writ of error. *455
Leman Philbrook and Julius Voelker, doing business under the firm name of Philbrook and Voelker, operated a men's clothing and shoe store in the village of St. Elmo in a building owned by Philbrook and his wife, and paid rent from the partnership funds. The partnership owned the stock of goods and the fixtures. The building was burglarized between Saturday evening, November 29, and Monday morning, December 1, 1941. Among the items of merchandise stolen were suits, trousers, overcoats, fingertip coats, leather jackets and neckties, having an approximate retail value of $5000, the purchase price being about $3200. Thursday, December 4, the sheriff and the State's Attorney of Fayette county, Philbrook, and two policemen of East St. Louis, went to Kreisler's place of business, a tavern in East St. Louis. In a small brick building situated at the rear of the tavern they found a considerable part of the merchandise stolen, including 81 pairs of trousers, 15 leather jackets, 5 suits, and 3 or 4 topcoats. Philbrook and Voelker labels were still on the merchandise and the suits were on hangers bearing their tags. Kreisler was arrested and taken to the police station where, according to Philbrook and the sheriff, he stated that he obtained the merchandise from a man named Leach and another named Jack, whose last name he did not know. Upon objection by Leach and Rosson, this statement was limited in its application to Kreisler. The officers testified that Kreisler asked for a telephone directory, obtained Leach's address therefrom and gave it to them. The same evening, Philbrook and the officers went to the residence of Frank Leach in East St. Louis where they found a leather jacket and two topcoats identified as being part of the merchandise taken from the store.
A statement of Rosson, admitted in evidence as People's exhibit 1, confessing his participation in the burglary, says that he left Kreisler's premises in East St. Louis on Sunday, November 30, drove Leach's car to St. Elmo, burglarized *456 the store of Philbrook and Voelker and carried the merchandise stolen back to East St. Louis and delivered the goods to Kreisler. The statement was admitted in evidence as against Rosson only, and the court immediately admonished the jury that it should not be considered against either of the other two defendants. Later, the jury was instructed to the same effect.
Kreisler explained his possession of the articles of clothing stolen from the store at St. Elmo by stating that he purchased the goods from two men named Jack and Frank who came into his tavern about 10:00 o'clock on Sunday evening, November 30, and inquired if he desired to buy some bankrupt stock which had been purchased at auction; that he examined the clothes, thought they were cheap at the price offered, and paid $325 in cash for them. Kreisler stated that the men from whom he purchased the stock of goods were not, however, Leach and Rosson, but "some other Frank and some other Jack," and denied saying at any time that he bought the merchandise from Leach, saying merely that he purchased the property from Frank and Jack. He testified further that he sold Leach a coat or jacket, and, for this reason examined a directory to find Leach's address. Kreisler disclaimed knowledge of the fact that the articles were stolen, adding that, on other occasions, he had taken in pawn articles such as rings and watches and that sometimes he purchased them. Leach denied participation in the burglary. He had been acquainted with Kreisler five or six years and frequently repaired to his tavern where he cashed checks. Leach testified that he bought a leather jacket and an overcoat from Kreisler on Thursday, December 4, "right before the policemen came to my house." He proffered no explanation of the second coat found in his possession. Leach had no definite recollection of his whereabouts on Sunday, November 30, but thought that he went hunting with his father *457 and a neighbor, and drove his own car. He was acquainted with Rosson and stated that he and Rosson went hunting together on the previous Sunday.
To obtain a reversal, defendants insist that there is a fatal variance between the burglary counts of the indictment and the proof. As recounted, the building burglarized was owned by Philbrook but the stock of goods and the fixtures in it were owned by the partnership of Philbrook and Voelker. The gravamen
of the offense of burglary, as defined by the Criminal Code, is the intent with which the entry of the building was made. (People
v. Weiss,
Complaint is made that the trial court erred in admitting in evidence the confession of Rosson, the codefendant. This confession was read to the jury over the objection of defendants Kreisler and Leach, neither of whom was present when it was made. The State's Attorney offered the confession for the limited purpose of having it apply to Rosson, the court admonished the jury as to its limited application and, at the conclusion of the trial, instructed the jury that the statement made by Rosson should not be considered in determining the guilt or innocence of Kreisler and Leach. Neither of the defendants last named sought *458
a severance. They are, consequently, in no position to complain. A defendant who has not made a motion for a separate trial cannot object to the admission in evidence of a confession of a codefendant, where the evidence is, as here, by proper instruction limited to the codefendant making the confession.People v. Cain,
The third contention which requires consideration is that the evidence is insufficient to sustain the conviction on the larceny count. Recent, exclusive, and unexplained possession of stolen property shortly after a theft is sufficient to sustain a conviction on the principle that possession gives rise to a presumption of guilt. (People v. Himstedt,
Finally, defendants assail the sentences to imprisonment carrying advisory recommendations of minimum and maximum terms pursuant to sections 2, 3 and 3a of an act to revise the law in relation to the sentencing and commitment of persons convicted of crime, as amended in 1941. (Ill. Rev. Stat. 1941, chap. 38, par. 801, et seq.) Their contention is that these sections, as amended, violate section 13 of article IV of our constitution. InPeople v. Montana,
The judgment of the circuit court of Fayette county is reversed and the cause is remanded, with directions to enter proper sentences as to defendants Kreisler and Leach.
Reversed and remanded, with directions. *460