The opinion
Mr. JUSTICE STENGEL, dissenting:
I cannot agree that a new trial is required for, in my judgment, defendant’s guilt is clearly established. I do not believe the trial court committed reversible error admitting the Sears roto tiller into evidence.
The victim of the alleged burglary identified People’s Exhibit No. 1 as his roto tiller by the paint burned off the muffler, the depth setting and the serial number. The serial numbers were disputed, but on re-cross-examination the owner stated he owned the machine for over a year before it was taken and that he should know his own machine.
The majority opinion’s emphasis on disputed serial numbers is misplaced. Many years ago our supreme court in People v. Miller (1930), 342 Ill. 244 , 174 N.E. 414 , considered the issue of identification of stolen tires. The defendant contended that the only satisfactory identification of the stolen tire could have been made by producing its serial number from a sales slip or memorandum book, but the court said:
“So far as the contention as to necessity of identification by serial number is concerned, recognition cannot be accorded to a rule purporting to lay down any such a requirement as plaintiff in error suggests. It is the province of the jury to determine the credibility of the witnesses testifying in the case and to determine whether a fact alleged or crime charged has been proven. (People v. Delorenzo, 300 Ill. 124 .) Where the evidence is conflicting this court will not substitute its judgment for that of the jury. There was sufficient evidence in this case to convict, and it cannot be said that the verdict is palpably contrary to the weight of the evidence or that the evidence is so unreasonable, improbable or unsatisfactory as to justify a reversal of the judgment on that ground. (People v. Herbert, 340 Ill. 320 ; Barron v. People, 73 id 256; I Wigmore on Evidence—2d ed.—par. 276.) It may be said, moreover, that on the evidence here disclosed the jury could not reasonably have brought in any other verdict than guilty.” 342 Ill. 244, 250 .
The propriety of receiving demonstrative evidence rests primarily within the discretion of the trial judge. People v. Smith (1st Dist. 1974), 17 Ill. App. 3d 494 , 308 N.E.2d 257 ; People v. Lawrence (1st Dist. 1970), 126 Ill. App. 2d 202 , 261 N.E.2d 459 .
I believe my colleagues have properly held that the defendant’s alleged admission of the burglary to Ronald Herring was direct evidence, and that IPI Criminal No. 3.02 was properly given in limited form. However, the statement of the majority that the State failed to prove the corpus delicti of the crime charged requires refutation. They seem to be proceeding on the assumption that the corpus delicti must be established beyond a reasonable doubt, independent of any admissions by the accused.
“A complete and controlling answer to the contention is found in People v. Brown, 379 Ill. 262 , where this court stated: ‘The true rule is that although a mere naked uncorroborated confession is insufficient to convict, the corpus delicti is not required to be proved beyond a reasonable doubt by evidence aliunde the confession or admissions of the accused. It is not essential that the corpus delicti shall be established by evidence other than that which tends to connect the accused with the crime. The same evidence may be used to prove both the existence of the crime and the guilt of the defendant. The test is whether the whole evidence proves the fact a crime was committed and that the accused committed it.’ ” People v. Franklin (1953), 415 Ill. 514, 519 , 114 N.E.2d 661 .
In the present case the admission of defendant was amply corroborated by other circumstances in evidence, and I believe established the corpus delicti beyond any reasonable doubt.
The question whether defendant, under the evidence, was guilty or innocent was a question of fact for the jury. They were the judges of the weight to be given to the testimony. (People v. Harrison (1925), 318 Ill. 316 , 149 N.E. 236 .) A reviewing court should not substitute its judgment for that of the jury where no prejudicial error has been committed and the verdict does not appear to be the result of passion or prejudice. People v. Lewis (1924), 313 Ill. 312 , 145 N.E. 149 .
In my opinion, the evidence in this case, when considered as a whole, establishes the guilt of defendant beyond a reasonable doubt, and the jury as trier of facts was fully justified in not believing the defendant and in finding him guilty of burglary.