Appendix — Weaver v. Illinois

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APPENDIX

Docket No. 41360—Agenda 31—September, 1968.

THE PEOPLE OF THE Stare or Iuinots, Appellee,

v.

TENNIE. WEAVER, Appellant.

Mr. Justice Scuazrer delivered the opinion of the Court:

A jury in the circuit court of Rock Island County found

the defendant, Tennie Weaver, guilty of burglary, pos-

session of burglary tools, and theft, and he was sentenced

to imprisonment ,in the penitentiary. On this appeal he

attacks the constitutionality of'a search of the automobile

in which he had ridden to the scene of the alleged crime,

‘contends that one of the three counts of the indictment

failed to charge an offense, and challenges the sufficiency of

the evidence to establish guilt upon the other two counts

—burglary and possession of burglary tools.

While cruising in their patrol car shortly after’ fia.

night on July 31, 1967, two officers of the East Moline police

department saw two men, the defendant and Jerry York,

in a well-lighted self-service laundromat... York was look-

ing out of the front window, and the defendant was at a

soft drink vending machine, the door of which was open.

The officers knew of recent thefts and vandalism in laundro- ~

‘mats located in that aréa: they drove on, circled, and en-

tered the laundromat a minute or two later. York was still

standing at the front window and the defendant had just

flushed the toilet in the rest room at the rear of the laun-

‘dromate. The men told the officers that they had stopped

in the laundromat to use a telephone. They were frisked

for weapons, and coins amounting to more than $50 were

found in the defendant’s pockets.

The defendant’s hands were cuffed behind his back and

he was placed in the front seat of the police car, where

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he shifted and squirmed about. York, accompanied by

one of the officers, drove his car, which had been parked

in front of the laundromat, to the police station. One of

the officers, whose suspicions had been aroused by the de-

fendant’s squirming movements in the police car, searched

the front seat of that car and found a key. The two

officers returned to the laundromat and found that the

key opened the outer door of the vending machine, although

it did not open the coin receptacle. The officers testified

- that they returned again to the police station to secure a

warrant for the search of York’s car. The officer in charge

of the shift telephoned a judge and was told that a war-

' rant was not necessary. The officers then searched York’s

car, and found more coins and a plastic bag containing 303

keys, some of which were of the type used to open vending

machines, and one of which opened the coin compartment

of the machine here in question. Later that morning York’s

car was turned over to the sheriff, and proceedings for its

; _ forfeiture were instituted on the same day.

The defendant testified that he and York had stopped

‘ at the laundromat so that York could telephone his wife,

and that while York was using the telephone, the defend-

ant went to the restroom. The defendant’s former wife,

a waitress, testified that shortly before. his arrest, he had

visited her in the favern where she worked and that she

had given him $40 to $50 in change which she had re-

ceived as tips. The proprietor of the tavern corroborated

her testimony...

The defendant contends that his constitutional rights

were violated when-his motion to suppress the coins and

the bag of keys found in York’s car was denied. For this

contention he relies upon Preston v. United States (1964),

376 U.S. 364, 11 L..Ed. 2d 777, 84 S. Ct. 881. In our

opinion, however, this issue is controlled not by Preston

but by Cooper v. California (1967), 386 U.S. 58, 17 L. Ed.

2d 730, 87 S. Ct. 788. See also People v. Carter, 38 Ill.2d

3a

. 496, 500; People v. Nugara (1968), 39 Ill.2d 482, cert. den..

— US. . L. Ed. 2d ——.

In our opinion the conduct of the officers was reason-

able. When they first saw the suspects, one of them was

apparently on guard at the front window while the other

was busy with the vending machine. We regard as im-

material the fact that the search of the automobile took

place after, rather than before, the suspects were taken

to the station. The officers testified that they had radioed

for assistance but that ‘‘the other squad car was busy.”’

Their judgment that it was advisable to take the suspects

_ to the station in order to prevent escape instead of search-

ing the car at the scene, is not, in our opinion, subject to

criticism., In a situation of this kind it is impossible

for police officers to do simultaneously everything that

needs to be done, and the fact that some steps are neces-

sarily given priority over others does not affect their legal-

ity. The search in this case was, in the language of Cooper

v. California, ‘‘closely related to the reason petitioner

was arrested.’’ (386 U.S. at 61, 17 L. Ed. 2d at 733.)

We hold, therefore, that the search of the car was rea-

sonable and did not violate the constitutional rights of

the defendant.

The defendant’s attack upon the legal sufficiency of

count III of the indictment is also phrased in constitutional

terms. This count charged that the defendant ‘‘committed

the offense of felony theft’’ and it alleged that he had

previously been twice convicted of theft of amounts not

exceeding $150. In denying his motion to dismiss this

count, the trial court directed that evidence of the de-

fendant’s prior convictions was not to-be introduced at

trial. The defendant now contends that the use of the

term ‘‘felony theft’’ deprived him of his right to be ap-

prised of the nature of the accusation against him, because

the Criminal Code does not describe any offense as ‘‘felony

theft.’’ This contention is without merit.

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The Criminal Code provides that the first conviction of

theft of property not exceeding $150 is punished as a mis-

demeanor. (See Ill. Rev. Stat. 1967, chap. 38, pars. 2—11,

16—1.) A second or subsequent offense is punished as a

felony. (See Ill. Rev. Stat. 1967, chap. 38, pars. 2—7,

16—1.) Since the indictment charged previous thefts, the

use of the characterization ‘‘felony theft,’’ while not neces-

sary, can hardly be said to. have deprived the defendant

of his constitutional right ‘‘to be advised of the nature

and cause of the accusation against him.’’ At worst, the

use of the word ‘‘felony”’ is surplusage and we fail to see

- how defendant was prejudiced by its inclusion. .

Similarly, we find no substance to defendant’s sweeping

contention that ‘‘to permit prior convictions to be alleged

in the indictment can and did have no other effect than

to confound and confuse the defendant in ascertainment

of the nature and cause of the accusation against him and

to deprive him of his constitutional: rights to due process”

and equal protection of the laws.’’ The indictment clearly

sets forth the current charge of theft; the additional in-

formation it provided concerning prior convictions in-

formed the defendant of the applicability of the recidivist

punishment that the legislature has provided.

The defendant also argues that the State’s evidence

failed to establish the crime of burglary beyond a reason-

able doubt. His’ position is that since the laundromat was

open to the public at the time in question, he could have

entered as a business invitee, and that without convincing

proof to the contrary, ‘‘his presence in the store is as con-

sistent with his innocence as with his guilt of the criminal

intent at the time of his entry.’’ While a common-law

breaking is no longer an essential element of the crime

of barglary (see Committee Comments, S.H.A., chap. 38,

par. 19—1; People v. Brown (1947), 397 Ill. 529), the.

statute requires an entry which is both without authority

and with intent to commit a felony or theft. (Ill. Rev.

-* Ba

Stat. 1967, chap. 38, par. 19—1.) A criminal intent formu-

lated after a lawful entry will not satisfy the statute. But

. authority to enter a business building, or other building

open to the public, extends only to those who enter with

a purpose consistent with the reason the building is open.

(See People v.. Brown, 397 Ill. 529, 530.) An entry with

intent to commit a theft cannot be said to be within the

authority granted patrons of a laundromat.

The defendant testified that he entered the building. with

York, who wanted to make -a' telephone: call. But other

evidence justified the jury’s disregarding this testimony,

and was sufficient to establish, beyond a reasonable doubt,

that the defendant ertered with an intent to commit a

theft. There was an outside telephone available for York

to use. Neither man had any laundry, and the jury could

have concluded that the evidence established that when the

defendant entered the establishment, he had and intended

to use the key which opened the door of the vending ma-

ching at which the defendant was discovered.

Finally, the defendant urges that his possession of bur-

glary tools was not established beyond a reasonable doubt.

“The statute defines as such a tool ‘‘any key * * * for use

in breaking into * * * any depository designed for the

safekeeping of property, or any part thereof, with intent:

to enter any such place and with intent to commit therein

a felony or theft * * *.’’ (Ill. Rev. Stat. 1967,-chap. 38,

par. 19—2. To show that neither his possession of nor

his intent to use such tools was established, the defendant

points to his own testimony that he Lad been in York’s car

only a short period, that he had see: no keys in the car,

and that his strange movements upon being placed in the

police car ‘were undertaken in an attempt to alleviate the

discomfort of the handcuffs.

Again we find that the State’s evidence was sufficient to

justify the jury in concluding that all elements of the statu-

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tory offense had been established beyond a reasonable

doubt. A key had been used to open the door of the vend-

ing machine at which the defendant was standing. A key

that opened the door of ‘that machine was found in the

police car where the defendant had been squirming to the

extent of putting one foot on the dashboard. The proof .

went further, and established that a bag of keys suitable

for similar purposes was found in the car in which the

defendant rode to the laundromat.

The judgment of the circuit court of Rock Island County

is affirmed. ,

J udgment affirmed.