People v. Moore

220 N.E.2d 105, 74 Ill. App. 2d 24, 1966 Ill. App. LEXIS 950
CourtAppellate Court of Illinois
DecidedJuly 29, 1966
DocketGen. 49,958
StatusPublished
Cited by5 cases

This text of 220 N.E.2d 105 (People v. Moore) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Moore, 220 N.E.2d 105, 74 Ill. App. 2d 24, 1966 Ill. App. LEXIS 950 (Ill. Ct. App. 1966).

Opinion

MR. JUSTICE McCORMICK

delivered the opinion of the court.

On June 13, 1965, a jury found the defendant, Henry Mallett guilty of robbery. In a trial in the Circuit Court of Cook County the trial judge entered judgment and the defendant was sentenced to serve a term of 15 to 30 years in the Illinois State Penitentiary. The defendant appeals to this court, urging reversal on two grounds: that conviction rested on inadmissible evidence, and that the trial court improperly refused his attorney’s request to recall the State’s key witness for cross-examination.

From the record it appears there was evidence that on October 29,1963, at about 5:45 p. m., at least three armed men entered the Clark Super Food Mart, 3820 West 16th Street, Chicago, and robbed it of a sum of money in excess of $1,000, some money orders, and eight store keys. This property was taken from the store’s safe while the customers and employees of the store were held at gunpoint. The head cashier of the store saw only one man, whom she could not identify, and who, she testified, entered the office, ordered her to sit on the floor, then went into the safe and the money order drawer.

Van Watts, Jr., a stock clerk in the store, and the State’s chief witness against the defendant, testified that the police arrived after the robbery at about 6:00 p. m., and he gave a description of the robber to three policemen; and that on the same evening at about 8:00 p. m., he talked to two detectives from the Robbery Division assigned to the case. The next night at the police station Watts first learned that the name of one of the suspected robbers was Mallett; and he testified that a relative of his called to his attention that he knew Mallet from having gone to grammar school with him. Watts further testified that on November 16, 1963, he identified Mallett as one of the robbers; that Mallett stated he knew Watts and that Watts was from “Clark” [Clark Super Food Mart]; and that Mallett admitted he had participated in the robbery. This latter was corroborated by the testimony of one of the detectives.

The day after the robbery, at about 7:30 or 8:00 p. m., the police went to the Mallett apartment, where Mallett lived with his wife, Sandra, and arrested one Isam Moore. Mallett had left the apartment about 15 minutes before the police arrived. At the time there was no light in the apartment, due to the electricity having been turned off because of Mallett’s failure to pay the electric bill. When the police arrived they arrested Moore and went through the Mallett apartment. One of the detectives, testifying on behalf of the State, said they found eight keys in a brown envelope on the headboard of the bed in the bedroom. The police inventoried these keys, and on November 16, 1963, the detective who found them went to the Clark Super Food Mart where the keys were identified as belonging to the Mart. It also appears from the record that these identical keys were taken in the robbery. At the trial they were marked State’s Exhibit One, and the detective testified that they were the same keys he took from the Mallett apartment.

Mrs. Mallett testified on behalf of the defendant. Her. testimony was that Moore had free access to the Mallett apartment; that he frequently stayed there overnight and slept on a pull-out bed in the front room, and that he had stayed there the night before the police arrested him. She further testified that although Moore never slept in the bedroom he “could walk into any room he wanted to.” She testified that Moore had come into the Mallett apartment the evening he was arrested; that after his arrival and before the police came, Mallett had left.

At the close of the State’s case the State introduced the keys into evidence over the objection of defendant. Defendant’s counsel specified his objection which was that the State had failed to prove that the keys were in the exclusive possession of Henry Mallett and were therefore not admissible. In this court the defendant argues that the keys were the product of an illegal search and were therefore inadmissible. The objection to the admission of the keys was not made on that ground, and the question of illegal search appears for the first time in defendant’s brief in this court. During the trial the defendant did not make a motion to suppress, nor did he even raise a question as to illegal search and seizure of the keys. The question was not raised in the defendant’s post-trial motion for a new trial. In People v. Harris, 33 I112d 389, 211 NE2d 693, the court held that the question of an illegal search and seizure becomes important only if the evidence obtained thereby is properly objected to at the trial, and stated: “It is well settled that this court will not consider the question of illegal search and seizure, even though pursuant to an illegal arrest, where it has not been raised before the trial court.” In People v. King, 26 Ill2d 586, 188 NE2d 11, the court held that since the defendant’s claim of unlawful search and seizure was raised for the first time on appeal, and since the narcotics were admitted into evidence without objection, it was unnecessary to consider the legality of the search since no objection on that ground was raised upon the trial. In People v. Brengettsy, 25 Ill2d 228, 184 NE2d 849, the court cited and quoted from People v. Washington, 23 Ill2d 546, 179 NE2d 635, as follows: “‘An objection to evidence, based upon a specific ground is a waiver of objection on all grounds not specified.’ ” Also see People v. Sotos, 26 Ill2d 460, 187 NE2d 245; People v. Riley, 31 Ill2d 490, 202 NE2d 531; People v. Ikerd, 26 Ill2d 573, 188 NE2d 12.

With reference to the alleged error of the court in permitting the keys to be introduced in evidence over the defendant’s objection that they were not shown to have been in his exclusive possession, People v. Wheeler, 5 Ill2d 474, 126 NE2d 228, is controlling. In that case the court said:

“Defendant contends that error was committed in admitting in evidence the bag of money found in the hotel room jointly occupied by defendant and Williamson, because defendant was not in exclusive possession of the room or the money. In advancing this argument defendant apparently has in mind the requirements of the well-settled rule that the recent, exclusive and unexplained possession of stolen property by an accused person in and of itself gives rise to an inference of guilt which may be sufficient to sustain a conviction in the absence of other facts and circumstances which leave in the mind of the jury a reasonable doubt as to guilt. (People v. Bennett, 3 Ill2d 357; People v. Nixon, 414 Ill 125.) Before the rule may be invoked exclusive possession must be proved. (People v. Phelps, 388 Ill 618; People v. Powloski, 311 Ill 284.) But it is equally well settled that joint possession with another can be exclusive possession within the rule. People v. Phelps, 388 Ill 618; People v. Strutynski, 367 Ill 551; People v. Scholler, 385 Ill 93.
“Defendant admits that he had occupied the room with Williamson from the time of their arrival until they were apprehended. There is no evidence that anyone else was in the room from the time Beck saw the two go upstairs on the morning of December 14 until the room was searched. Defendant himself admits that he was in the room when Williamson entered with the money.

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Bluebook (online)
220 N.E.2d 105, 74 Ill. App. 2d 24, 1966 Ill. App. LEXIS 950, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-moore-illappct-1966.