Smith v. People

Mr. Justice Sheldon

delivered the opinion of the Court:

This was an indictment for burglary, against George Smith, alias George Buckingham, and Thomas Dennis, upon which the latter was acquitted, and the former convicted and sentenced to the penitentiary for fifteen years. The defendant convicted brings this writ of error.

The first point made by plaintiff in error is, that there is a variance between the proof and indictment, in that the indictment charges the burglarious entry was into the dwelling house of Francis Demling, while the proof shows that Dem-ling did not own the house where he lived, but that he rented the first floor of the house, where was his room from which the property was taken, from one Groosheimer, the owner, who lived in the apartments above. In burglary, the ownership may be laid in the occupant whose possession is rightful as against the burglar. (2 Bishop on Crim. Proc. sec. 138.) The rooms rented to Demling constituted the dwelling house of Demling in the sense of the law. (Mason v. People, 26 N. Y. 200.) There is nothing in this point.

It is urged next, that the court below erred in allowing the witness Bannon to give in evidence the statement made to him by the co-defendant, Dennis, at a time when Smith was under arrest. The statement was clearly evidence against Dennis, and was therefore properly admitted to go to the jury on the trial of the two defendants together.

It is insisted that the possession by Smith of a part of the property stolen does not afford evidence to connect him with the burglary. It is admitted that the possession of property recently stolen is prima facie evidence that the person in possession committed the larceny. But it is claimed that there is a distinction in this respect between larceny and burglary. We see no foundation for any such distinction here. The proof shows that the larceny was committed at the same time with the burglary, and that about a month afterward Smith was found in possession of part of the articles stolen. The same person that committed the larceny no doubt committed the burglary, and whatever went to show one to be guilty of the larceny, equally evidenced his guiltiness of the burglary.

The co-defendant, Dennis, offered himself as a witness in his own behalf, and testified, as to a part of the articles stolen which had been in his possession and which he had pawned, that Smith gave him the articles, and hired him to pawn them. Upon the calling out of this evidence, defendant Smith made objection that the statements of the witness Dennis were only evidence in the latter’s own behalf, and could not be used against Smith to convict him of the crime charged, which objection the court overruled. The court also refused to give the following instruction asked by Smith:

“The court instructs the jury, as matter of law, that the evidence of Dennis, the co-defendant of Smith, who is jointly indicted and tried jointly with him, is evidence only against Dennis and not against Smith, and the jury, in arriving at a verdict, can not use the evidence of Dennis to convict Smith on the indictment in this case.”

Such ruling of the court in respect of Dennis’ testimony is assigned for error. The court’s ruling in this respect was justified under the decision of this court in Collins v. People, 98 Ill. 584, where it was held, under the provision of the statute, that “no person shall be disqualified as a witness in any criminal case or proceeding by reason of his interest in the event of the same, as a party or otherwise, or by reason of his having been convicted of any crime,” (Rev. Stat. 1874, p. .410,- see. 6,) that a joint defendant in an indictment was a competent witness against his co-defendant.

Finding no error in the record, the judgment must be affirmed.

7 ^ J udgment affirmed.