dissenting:
At best this case, insofar as the charge of burglary is concerned, is a skimpy, circumstantial one. There is no direct evidence placing the defendant in the premises wherein the stolen typewriter was located. The majority is content with the proof of the requisite intent to commit the crime of burglary by the evidence establishing possession of the typewriter in the defendant sometime after the commission of the crime. Exclusive and unexplained possession of the proceeds of a burglary does, of course, give rise to an inference of guilt of something, but is it burglary or some other crime? Where that possession is explained by the uncontradicted statement of defendant it is stretching out to an inordinate degree to bring it within the teaching of People v. Umphers (1971), 133 Ill. App. 2d 853, 272 N.E.2d 278, and People v. Brandy (1974), 22 Ill. App. 3d 687, 318 N.E.2d 70. In both Umphers and Brandy there was flight from the scene of the crimes and the possession of the proceeds of the burglary was accompanied by other incriminating factors. Here there was no attempt to flee.
Furthermore, the majority indicated that “It is well settled that when a defendant elects to justify his participation at or near the scene of a crime, while denying participation, he must tell a reasonable story or be judged by its improbabilities.” Surely the defendant cannot be understood to say that he was justifying his participation at or near the scene of the crime while denying participation. The defendant was explaining his possession of the recently stolen typewriter. The jury, of course, could believe or disbelieve his story, but to use his denial as a prop to support the State’s duty to prove defendant’s guilt beyond a reasonable doubt is carrying things too far.
The receipt into evidence of a certified copy of a prior conviction, containing evidence of burglary indictments upon which defendant was acquitted, is error of a most egregious nature. The majority concedes this to be “an example of prosecutorial overkill which cannot and will not be sanctioned by this court.” This conclusion of the majority was, alas, not one of long standing. It was followed by a determination that the so-called “irrelevant and surplusage arrests in the exhibits were adequately explained and nullified by defendant’s own testimony which stood uncontradicted.” This is indeed remarkable. The majority believes the defendant and relies upon his testimony when he explains his past record, but denies his credibility when he explains his conduct in this case. In any event, the receipt into evidence of these documents could only serve to prejudice the jury against defendant and, in my judgment, constitutes reversible error which, even though not preserved, should be reached by the application of the doctrine of plain error. For these reasons, I dissent.