{ "id": 1592974, "name": "People of the State of Illinois, Appellee, v. James Smith and Norman Rich, Defendants-Appellants", "name_abbreviation": "People v. Smith", "decision_date": "1969-07-08", "docket_number": "Gen. No. 68-43", "first_page": "283", "last_page": "289", "citations": [ { "type": "official", "cite": "111 Ill. App. 2d 283" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "211 NE2d 673", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "33 Ill2d 417", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2882811 ], "opinion_index": 0, "case_paths": [ "/ill-2d/33/0417-01" ] }, { "cite": "185 NE2d 688", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "25 Ill2d 565", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5351481 ], "opinion_index": 0, "case_paths": [ "/ill-2d/25/0565-01" ] }, { "cite": "369 US 878", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6295800, 6297251, 6295428, 6296074, 6296684, 6296397, 6297517, 6296984, 6297820 ], "opinion_index": 0, "case_paths": [ "/us/369/0878-02", "/us/369/0878-07", "/us/369/0878-01", "/us/369/0878-03", "/us/369/0878-05", "/us/369/0878-04", "/us/369/0878-08", "/us/369/0878-06", "/us/369/0878-09" ] }, { "cite": "178 NE2d 296", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "23 Ill2d 254", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2795900 ], "opinion_index": 0, "case_paths": [ "/ill-2d/23/0254-01" ] }, { "cite": "210 NE2d 574", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "62 Ill App2d 73", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5299842 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/62/0073-01" ] }, { "cite": "147 NE 396", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "317 Ill 33", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5147461 ], "opinion_index": 0, "case_paths": [ "/ill/317/0033-01" ] }, { "cite": "220 NE2d 498", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "75 Ill App2d 184", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2578409 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/75/0184-01" ] }, { "cite": "238 NE2d 196", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "95 Ill App2d 193", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2537946 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/95/0193-01" ] }, { "cite": "161 NE 2d 309", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "17 Ill2d 328", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5332878 ], "opinion_index": 0, "case_paths": [ "/ill-2d/17/0328-01" ] }, { "cite": "187 NE2d 728", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "27 Ill2d 23", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5358880 ], "opinion_index": 0, "case_paths": [ "/ill-2d/27/0023-01" ] } ], "analysis": { "cardinality": 528, "char_count": 8542, "ocr_confidence": 0.618, "pagerank": { "raw": 1.0482681451391714e-07, "percentile": 0.5529420827237418 }, "sha256": "e6bb6e1a7492c69322a8ca74a540f20e7167d7ac6a505a3072d0ac9b815729d3", "simhash": "1:e68167391f8c965f", "word_count": 1420 }, "last_updated": "2023-07-14T17:10:08.662020+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "People of the State of Illinois, Appellee, v. James Smith and Norman Rich, Defendants-Appellants." ], "opinions": [ { "text": "MORAN, J.\nJames Smith and Norman Rich were arrested on May 25, 1967, and later tried in a joint prosecution for burglary. The jury found them guilty on September 15,1967, and on October 9, 1967, the Circuit Court of St. Clair County entered judgment and sentenced defendant Smith to the Penitentiary for ten to twenty years and defendant Rich for five to twenty years. Both defendants appeal from the judgment and the sentences.\nAt 9:30 a. m. on May 25,1967, Patrolman Harold Moore, while off duty from the East St. Louis Police Department, noticed a black Chevrolet station wagon parked by a vacant house. Such a car had been reported to be involved in several burglaries in the area. Therefore, Patrolman Moore circled the area and put himself in position to see two men in the rear doorway of the vacant house with the door open. He recognized one as Norman Rich whom he had known previously. At the trial he identified James Smith as the second man.\nAfter spotting the defendants, Patrolman Moore re-circled the area. Upon returning to the vacant house, he saw Rich backing the station wagon up to the back porch. He then watched as Rich stopped the car and both defendants entered the house through the back door. Not desiring to approach two suspects by himself, Patrolman Moore left to call for assistance. He returned about twenty minutes later with Lieutenant O\u2019Sullivan. While returning, he saw the. station wagon being driven in another direction. He and Lieutenant O\u2019Sullivan followed in this direction, found defendants with the station wagon and arrested them.\nLater Lieutenant O\u2019Sullivan determined from the owner of the vacant house that an air conditioner and an exhaust fan were missing and got their serial numbers. He went to Rich\u2019s house, which was about four blocks away from the burglarized house, and found the stolen items there. Mrs. Rich told him they were not hers and offered no objection to their removal.\nIt was discovered that the station wagon was owned by Rich\u2019s brother.\nThe jury found both defendants guilty. The court entered judgment on the verdicts, overruled the post-trial motions of both defendants, and denied probation after a hearing in aggravation and mitigation and for probation.\nOn appeal, defendants argue that they were not sufficiently identified as a matter of law so as to find them guilty beyond a reasonable doubt; that certain evidence was improperly introduced at the probation hearing; that the remarks of the court at the time of sentencing showed undue prejudice; and that the sentences are excessive.\nDefendants\u2019 first contention is based on the fact that James Flannery, one of the owners of the burglarized house, testified that there is no way to see the rear door from the front of the house. They argue that it was, therefore, impossible for Patrolman Moore to identify two men at the rear of the house. However, this argument ignores Patrolman Moore\u2019s testimony that he placed himself in position to see them. It should also be emphasized that even though he had been a member of the Police Department for only four months, Patrolman Moore was a police officer who was trained to observe.\nThe identification of both defendants and of the station wagon by Patrolman Moore and the recovery of the missing items at Rich\u2019s home by Lieutenant O\u2019Sullivan provide a sufficient basis on which the defendants could be found guilty beyond a reasonable doubt. It is well settled that a conviction of burglary can be sustained upon circumstantial evidence and that the trier of fact need not disregard the inferences that flow normally from the evidence before it. See People v. Brown, 27 Ill2d 23, 187 NE2d 728; People v. Russell, 17 Ill2d 328, 161 NE 2d 309.\nDefendants also argue that matters involving previous arrests not followed by convictions should not be placed in the record for consideration by the Court at the hearing on probation and are prejudicial to them. Defendants cite two cases to support this proposition, People v. Jackson, 95 Ill App2d 193, 238 NE2d 196, and People v. Grigsby, 75 Ill App2d 184, 220 NE2d 498. However, neither case is applicable because both involve situations where error was committed due to inadmissible evidence being considered at a hearing in aggravation and mitigation. In the instant case neither side offered evidence in aggravation and mitigation. In fact, counsel for defendants stated that he did not wish to put on any evidence in way of mitigation but only wished to argue for probation on the basis of the probation officer\u2019s report.\nIt was therefore defendants themselves who directly entered the probation officer\u2019s report into the record.\nAs to the propriety of a probation officer\u2019s report including arrests, it has been held that such inclusion did not violate the statutory requirements of such an investigative report. People v. Miller, 317 Ill 33, 147 NE 396. Even People v. Jackson, supra, cited by defendants, notes that the ordinary rules of evidence applicable to criminal proceedings are not applicable to a hearing in aggravation and mitigation. Admitting this, it should be apparent that even greater latitude should be granted the court in a hearing for probation. This is true because one convicted of crime has neither an inherent nor a statutory right to probation and the granting or refusing of probation rests in the discretion of the trial court. People v. Smith, 62 Ill App2d 73, 210 NE2d 574. We thus find no error in the admission of any of the evidence at the hearing on probation.\nDefendant Rich particularly argues that the State prejudiced his cause by calling direct attention to the fact that he was then under indictment for a different offense and that those charges were pending. However, the record reveals that this statement was made only after defendant Rich verified that he was not under any arrest charges other than those mentioned by his counsel. We see no error in allowing the State to provide the correct information when the only alternative was to allow the court to base its decision on a misstatement of fact.\nDefendants also maintain that the remarks of the trial court at the time of sentencing showed undue prejudice towards them. Objection is specifically made to the court\u2019s statement to Rich, \u201cYour attitude in this case in denying your guilt, and putting the State to the inconvenience and the expense of trial, does not indicate, in general, repentance for your acts.\u201d While this statement may be considered \u201cinappropriate\u201d (People v. Capon, 23 Ill2d 254, 178 NE2d 296, cert den 369 US 878), we do not view it as indicating that the trial judge exercised his discretion in an arbitrary manner. Furthermore, the instant case is not analogous to People v. Moriarity, 25 Ill2d 565, 185 NE2d 688, where the cause was remanded because the trial judge clearly indicated to the defendant that his decision to stand trial \u201cwill cost you nine years additional.\u201d Rather, the remarks in the present case indicate only that the trial judge was disturbed that the defendants had not displayed a penitent spirit before him. The weighing of such a factor is within the discretion of the trial court.\nThe final contention of defendants is that their sentences are excessive. While we might not have imposed the same sentences if we had been the trial court, the fact remains that the trial court has a superior opportunity to make a sound determination concerning the punishment to be imposed than does an appellate tribunal and therefore a reviewing court should exercise its power to reduce sentences with considerable caution and circumspection. People v. Taylor, 33 Ill2d 417, 211 NE2d 673. Furthermore, we cannot say that this case represents an instance where the trial court abused its discretion. The facts are that Smith was in violation of parole on another burglary conviction when arrested for this burglary and Rich attempted to mislead the trial court as to his criminal background. Under these facts we cannot say that the sentences imposed were excessive.\nFor the foregoing reasons, the judgment of the Circuit Court of St. Clair County is affirmed in all respects.\nJudgment affirmed.\nEBERSPACHER and GOLDENHERSH, JJ., concur.", "type": "majority", "author": "MORAN, J." } ], "attorneys": [ "Robert J. Hillebrand, of East St. Louis, for appellants.", "Robert H. Rice, State\u2019s Attorney of St. Clair County, of Belleville (William R. Poston, Assistant State\u2019s Attorney, of counsel), for appellee." ], "corrections": "", "head_matter": "People of the State of Illinois, Appellee, v. James Smith and Norman Rich, Defendants-Appellants.\nGen. No. 68-43.\nFifth District.\nJuly 8,1969.\nRobert J. Hillebrand, of East St. Louis, for appellants.\nRobert H. Rice, State\u2019s Attorney of St. Clair County, of Belleville (William R. Poston, Assistant State\u2019s Attorney, of counsel), for appellee." }, "file_name": "0283-01", "first_page_order": 289, "last_page_order": 295 }