People v. Van Cleave

PRESTON, J.

After a careful reconsideration of this cause, we are pleased to adopt in part, as follows, the opinion of Mr. Presiding Justice Works of the Second Appellate District, as the opinion of this court in bank herein:

“Defendant was convicted of the crime of burglary. He appeals from the judgment and from an order of' the trial court denying his motion for a new trial.

“It is first contended by appellant that the evidence was insufficient to support the verdict. The complaining witness, a woman, left an apartment in which she resided at about ten o’clock on a certain evening. Before she departed she saw in their accustomed places in the apartment certain articles which were ascertained, later in the night, to have been abstracted therefrom. It was because of the disappearance of these articles that the charge was made against appellant upon which he was convicted. When the complaining witness left her apartment she drove in her automobile to a certain residence, where she met appellant, who theretofore had been her associate and friend, and some other persons, among whom was one Akins. Shortly after she arrived at this place of meeting the complaining witness discovered that a dog she had brought with- her had disappeared. She then gave to appellant a bunch of keys, including those to her car, to the exterior door of the apartment house in which she lived, to her apartment and to her trunk, and she asked appellant to drive her car about the neighborhood of the residence mentioned, in an endeavor to find the missing dog. This was the purpose of the delivery of the keys. Appellant immediately departed upon the quest, taking Akins with him. The two returned, after an absence of from twenty-five to forty-five minutes, with the dog. After some considerable time spent at the residence and after having been to a restaurant for supper, together with Akins and a fourth person, appellant and the prosecuting witness drove to the latter’s apartment

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and entered it by means of her keys, which had meanwhile been returned to her. They reached the apartment at about 2:30 in the morning. Prom certain appearances about the rooms it was apparent to the prosecuting witness that the place had been entered during her absence. She at once unlocked her trunk with a key on the bunch she had earlier entrusted to appellant. She testified that four diamond rings, of the value of $4,000, together with $140 in currency had been taken from drawers in the trunk. The evidence tended to show that the burglar had entered the apartment by means of a key, as there was no indication that the place had been broken into, in the ordinary acceptation of that term. The drawers in the trunk, five in number, were held in place by a metal bar which passed across their front and which it was necessary to move before they could be opened. The police found a print of appellant’s thumb upon this bar. Other fingerprints were upon it also, but none of them could be identified or plainly discerned. All the prints, except that alone of appellant’s thumb, were, in the language of an expert upon the witness stand, but ‘smears.’ Before the night on which the burglary occurred appellant was familiar with the ‘lay’ of the apartment of the prosecuting witness. He had visited her there at least as often as every other day for a period of two months. Particularly, according to some of the evidence, he was familiar with the trunk and the mechanism by means of which it was opened, for he had often gone into it to get articles desired by the complaining witness when he was in the apartment with her, or to get articles which he himself desired. Indeed, it is contended by appellant that the sole distinguishable fingerprint on the metal bar was made by him upon some occasion earlier than the night upon which the burglary occurred. It will be remembered that the owner of the trunk had opened the drawers before she left her apartment at ten o’clock and had seen the rings and money in their places. She had been compelled, necessarily, to handle the metal bar in order to open the drawers. Under all these circumstances the inference is perhaps possible that appellant’s thumb print was impressed'on the bar between ten in the evening and two-thirty in the early morning of the night upon which the burglary was committed, although more will be said on that subject later.