People v. Jendrzejak , 98 Ill. App. 2d 313 ( 1968 )

MR. JUSTICE ENGLISH

delivered the opinion of the court.

Crime Charged

Driving while under the influence of intoxicating liquor. (Ill Rev Stats (1967), c 95i/2, § 144.)

Judgment

After a bench trial, defendant was found guilty and fined $200.

Contentions on Appeal

(1) Defendant was denied a fair trial because of the admission into evidence of a statement which had been obtained from him in violation of his constitutional rights.

(2) Defendant was not proven guilty beyond a reasonable doubt.

Evidence ^*

At a Hearing on Defendant’s Motion To Suppress Evidence.

Leonard Ruksha, arresting officer.

When he came to the scene of the accident, and was investigating what had happened, defendant admitted driving. Defendant made this statement before he was restrained or arrested.

(Defendant’s motion to suppress was denied.)

At the Trial

Leonard Ruksha, for the State.

He was a police officer. At 2:17 a. m., April 8, 1966, he saw a car in the ditch along Austin Boulevard at 92nd Street. Defendant was standing on the roadway. Ruksha investigated to determine how the car got in the ditch and who owned it. Defendant stated that he was the owner and driver of the automobile. Thereupon, Ruksha arrested defendant and took him to the Oak Lawn police station.

Ruksha made the following observations regarding defendant: (1) There was a strong odor of alcohol on his breath; (2) he was talkative, insulting, and cocky; and (3) his speech was mumbled and “mush-mouthed.” On intoxication performance tests his balance was wobbly, his walking was staggering, his turning was swaying, and on the finger-to-nose test he completely missed with both hands. Defendant refused to take the coin test. He also refused to answer any questions from the Alcoholic Influence Report Form. In Ruksha’s expert opinion, defendant was unfit to drive because he was under the influence of intoxicating liquor.

Anthony V. Jendrzejak, defendant.

He and his wife were at a social gathering on the evening of April 7. He had imbibed sufficient alcohol to have been, in his own opinion, unfit to drive. For this reason his wife took the wheel for the trip home while he slept in the car. He awoke to find the car in the ditch. He quarreled with his wife, who then departed, leaving him alone standing in the roadway where Officer Ruksha found him. He was the owner of the car and had driven it to the social gathering.

Sman Jendrzejak, for the defense.

She was defendant’s wife. She corroborated her husband’s testimony, adding that she swerved the car into the ditch to avoid hitting what she believed was an animal on the road. After quarreling with defendant, she left him and the car in the ditch and went home (some 19 blocks away).

Opinion

(1) Initially, defendant contends that the trial he received was unfair. His only argument in this regard is that his statement that he was the owner and driver of the automobile was erroneously admitted into evidence in violation of his Fifth Amendment rights, as enunciated in Miranda v. Arizona, 384 US 436.

However, the uncontroverted testimony of Officer Ruksha shows that the statement (which defendant does not deny making) was made before defendant was either restrained or arrested. Further, the record does not indicate that the statement was made in response to a specific inquiry. On the contrary, it appears defendant volunteered the statement during a period of general on-the-scene questioning. “Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence.” Miranda v. Arizona, supra, at 478. In our opinion, the evidence demonstrates that the admission was obtained in such a manner as to render it competent.

(2) Secondly, defendant contends that the State failed to meet its burden of proving beyond a reasonable doubt both the corpus delicti and the guilt of defendant. See People v. Miller, 23 Ill App2d 352, 356, 163 NE2d 206. He argues that since both his and his wife’s testimony was to the effect that he hadn’t driven the car on the night in question and that the only evidence that he did drive the car was his statement to Officer Ruksha, the proof does not support the conviction.

Defendant cites People v. Skelly, 409 Ill 613, 100 NE2d 915, for the proposition that the positive testimony of a witness, uncontradicted and unimpeached, either by other positive testimony or by circumstantial evidence, intrinsic or extrinsic, cannot be disregarded but must control the decision, unless it is inherently improbable. See People v. Miller, supra, at 358. Though we find no fault with this proposition, it is not applicable to the instant facts. The testimony of defendant and his wife must first be considered in the light of their interest in the outcome of the case, and we note here that the trial judge made an express finding that he did not believe either of them. Then, too, their testimony is contradicted by Ruksha’s testimony of defendant’s admission, which defendant did not deny having made. Further, it is inherently improbable that a husband, whose wife had just driven his car into a ditch and left him there with the car at about 2:00 a. m., would not have mentioned the incident to an investigating officer, either at the scene or in the lengthy conversations which ensued at the police station. Cf. Carroll v. Krause, 295 Ill App 552, 15 NE2d 323. Under all the circumstances of this case, it was not error for the trial judge to disbelieve and totally disregard the testimony of defendant and his wife. People v. Schehr, 88 Ill App2d 287, 292-293, 232 NE2d 566. The trial judge and not the reviewing court has the opportunity to observe the witnesses and is, therefore, in a superior position to evaluate credibility.

Still, defendant argues that even if the defense testimony is disregarded, the corpus delicti has not been established, since the only evidence that he drove the car is the policeman’s testimony concerning defendant’s own statement or admission. Not so, for in People v. Nachowicz, 340 Ill 480, 495,172 NE 812, the court said:

While it has been held that a defendant’s confession, when the corpus delicti is not otherwise proved, is insufficient for a conviction, this does not mean that the corpus delicti must be proved by the evidence, aside from the confession, beyond a reasonable doubt. On the contrary, it was early held that it is the mere naked confession, uncorroborated by any circumstance inspiring belief in its truth arising out of the conduct of the accused or otherwise, which is held insufficient to convict, and the corroborating fact or facts in proof need not necessarily, independent of the confession, tend to prove the corpus delicti. (Citation.) Direct and positive evidence is unnecessary to prove the corpus delicti, (citation) and it is not essential that it should be established by evidence independent of that which tends to connect the accused with its perpetration.

Thus, the evidence corroborating a confession or admission need only consist of facts or circumstances tending to confirm and strengthen it. People v. Lueder, 3 Ill2d 487, 489, 121 NE2d 743.

Without regard to the evidence of defendant’s statement, the facts and circumstances in evidence tended to prove — although, let us say, not beyond a reasonable doubt — that defendant drove the car. The car had recently been driven into the ditch and the owner was present. In a civil case, where the quantum of proof is the preponderance of the evidence, a motor vehicle is presumed to have been driven by its owner. E. g., Robinson v. Workman, 9 Ill2d 420, 137 NE2d 804; Sutherland v. Guccione, 8 Ill App2d 201, 131 NE2d 130. This presumption is founded in large part on the high probability that the underlying inference is correct. By analogy, the facts and circumstances presented by the case on appeal are sufficiently persuasive to support the inference that defendant was the driver of the car. Thus, there is evidence which tends to strengthen and confirm the admission.

Therefore, the determinative question remains whether the whole of the evidence proves defendant’s guilt beyond a reasonable doubt. We believe that it does.

People v. Gamier, 20 Ill App2d 492, 156 NE2d 613, is sufficient authority to control the decision in this appeal. Garnier’s drunken driving conviction was affirmed by this court. The only evidence that he had driven the car while intoxicated was that he was sitting in the car which was illegally parked some 40 blocks from the place where he had been imbibing. There was no evidence that he had been seen driving the car. Judge Lewe, speaking for the court, found the inference that he had driven the car from the place where he had been drinking to the place where it was illegally parked, was sufficiently strong to establish guilt beyond a reasonable doubt, citing People v. Falkenberg, 5 Ill App2d 578, 126 NE2d 408. Judge Kiley dissented, taking the position that the inference was not so persuasive as to meet the burden of proof. Judge Kiley distinguished Gamier from Falkenberg by reference to the fact that Falkenberg admitted he had “just hit a car.” This admission, which is a parallel to the case now before us, renders both the majority and dissenting opinions in Gamier highly persuasive of affirmance here.

Decision

The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER, J., concurs.

* Since no verbatim transcript was available, the Report of Proceedings was prepared pursuant to Supreme Court Rule 36-1(3) (c). 29 Ill2d XI-XII, now Rule 323(c), ch 110A, § 323(c). Defendant raises no proper issue concerning the accuracy of the Report of Proceedings.