¶1dissenting:
¶2I dissent.
¶3The majority have cited several cases where the defendant was apprehended in the possession of burglary tools during the night time. The majority points out that the defendants were seen in the large shopping center parking lot at Oak Brook during business hours. I do not think that we have to divorce ourselves from reality. The thefts of motor vehicles from large shopping center parking lots are committed during shopping hours, both in the daytime and at night when the cars are available for theft.
¶4There is no question but that defendant Small “cased” the brown Pontiac LeMans in question here. According to the testimony of Officer Delise, who was conducting a surveillance of the lot from an unmarked car, the defendant Small twice tried the door handle of the Pontiac. The defendants then drove off, stopped and looked into another auto and shortly thereafter they returned to the Pontiac and Small again tried the door. The defendants then abruptly drove off “with tires squealing” and were apprehended by uniformed officers a short distance from the parking lot. In the back seat of the defendants’ car a “slam hammer” (a device for the removal of auto locks or dents), a long-neck screw driver and a roll of clear plastic tape were observed by all of the arresting officers. It is common knowledge that a slam hammer is a common tool used in the theft of motor vehicles.
¶5I believe that People v. Faginkrantz (1960), 21 Ill. 2d 75, 171 N.E.2d 5, is controlling in this case. In Faginkrantz the defendant had in his possession tools originally designed for lawful purposes but adapted for breaking and entering. The defendant’s employer testified that he operated a car repair shop and that he had permitted Faginkrantz to borrow the tools for repair to his own cars. Faginkrantz was a bench trial. In answering defendant’s contention that the State had failed to prove that he intended to use the burglary tools for breaking and entering, the supreme court stated:
“In the absence of a confession, the requisite intent must ordinarily be proved by circumstantial evidence. [Citation.] Since a jury was waived,-it was for the trial court to determine the credibility of the witnesses and the inferences to be drawn from the testimony.” 21 Ill. 2d 75, 80, 171 N.E.2d 5, 8.
¶6In the case before us, which was also a bench trial, the defendants lived on the far south side of Chicago, many miles through heavy traffic from the Oak Brook Shopping Center. Yet their testimony was that they had gone “shopping” on the morning in question. As in Faginkrantz, the defendants had in their possession tools adaptable to breaking into and entering motor vehicles. Also, the defendants’ quite unusual actions in the lot were unexplained. We should not substitute our opinion for that of the trial court under the facts of this case. The evidence here is every bit as strong and conclusive as it was in Faginkrantz — the defendants twice trying the door of the Pontiac, their apparent hasty retreat or flight, and the subsequent observation of the burglary tools adaptable for breaking into automobiles in the defendants’ car, is more than enough to justify the trial court’s decision. Nor am I impressed by the testimony of the employer that he had loaned the tools in question to the defendant Bibbs for the purpose of repairing his wife’s car. Similar testimony was considered by the court in Faginkrantz and found wanting.
¶7I would affirm.