The opinion
Mr. JUSTICE JONES, dissenting:
The majority has substituted their judgment of the credibility of the witnesses and the weight to be accorded their testimony for that of the trial court. Under the facts present in this record such substitution is unwarranted and I accordingly respectfully dissent.
I believe the People proved, that the defendants violated their probation by committing a burglary of the S. & L. Sanitation Corporation building by proper and legal evidence, which the trial court was entitled to believe, and that the exoneration testimony of the alleged accomplices and other witnesses for defendants was unworthy of belief, and the trial court was justified in disregarding it. I further believe that the majority erred in failing to take note of, or even mention, a substantial factor of corroboration present in the trial court’s rejection of the exoneration testimony of the alleged accomplices.
The burglary occurred in the early morning hours on December 13, 1975. On December 20, 1975, Nathan Harper, brother of defendant Ray Harper, was arrested and gave a statement detailing the events of the burglary and implicating himself, the two defendants and Robert Eldridge. Nathan also led the officers to an automobile at the residence of Carl Inselmann. The automobile was titled in the name of defendant Ray Harper and in its trunk were the items of property taken in the burglary. On January 31,1976, Robert Eldridge was arrested and gave a statement substantially similar to that of Nathan Harper.
At the hearing on the petition to revoke probation Joe Brooks testified that defendants came to his trailer after the arrest of Nathan Harper. He related that defendants told him that they had committed the burglary at the S. & L. Sanitation Corporation and that they were concerned that Nathan might get scared and sign a statement. The admission of defendants to Joe Brooks constitutes proof that defendants committed the burglary, if the testimony was believable. Both Nathan Harper and Robert Eldridge, when called to testify, repudiated their signed statements and said they were given under coercion. They professed to know nothing of the burglary. The statements, hearsay as to defendants, were then introduced into evidence as impeachment of the testimony of Nathan Harper and Eldridge. Patricia Oakley testified for defendants that she was at the home of defendant Seymour as a babysitter December 12, 1975, arriving between 5:30 and 6:30 and leaving about 1:30 a.m. She stated both defendants were there the entire time.
Defendants did not testify.
These facts present the classical situation for a determination of the credibility of the witnesses. The trial court could, and obviously did, believe Joe Brooks and disbelieved Nathan Harper, Robert Eldridge and Patricia Oakley. The testimony of Nathan Harper was severely impeached by the fact that he led police to the stolen property located in an automobile titled in the name of defendant Ray Harper. This circumstance lends veracity to his statement and shows or tends to show he was not testifying truthfully when he took the witness stand.
The majority has correctly stated the law regarding the burden of proof and the manner in which the testimony of accomplice witnesses is to be received. They should keep in mind, too, that those same rules, and the same motivations, apply to those testifying for defendants in this case. Their position vis a vis the defendants should subject their testimony to equal doubt and hesitation when it is directed in their favor.
The trial court was, of course, aware of these rules and the inherent doubt with which the testimony of the various witnesses should be received. His was the superior vantage point. His judgment should be affirmed.