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irs There was an objection to every question

short distance arom enda shotrok stationen Smith: He is objecting to every question

parties disarmed Visvardis. Other witnesses "Q. Are you indicted for robbery now? A. testified that when Chara hus heard of this I was arrested, but I don't know if I am indict. he rebuked Visvardis and his associates for ed yet. not using their guns, and told them that if "Q. Were you indicted by the federal govern. they did not know how to use their guns they ment? A. I don't know if I am indicted. ought to throw them in the ash can. The

"Q. In a bank robbery? Did the government theory of the defense is that the Charahus arrest you? A. Yes. faction were under the impression that Gar: Bank of $14,000 of Liberty bonds ?

“Q. For the robbery of the Atlas National

A. Yes. ines and others of the Barbas faction had

“Q. Is that what you were arrested for? A. caused the police to close the gambling house Yes; but my attorney will find outowned by Visvardis, Dennis Lardas, and oth "Q. Is Mr, Nash your attorney? A. No. ers of the Charahus faction; that Charahus "Q. And when were you arrested by the fedhad said repeatedly that he did not need the eral authorities ? A. In my place about three aid of the police to rule in his district, and weeks ago; I am out on bonds now." that he could take care of his own affairs with his gun; and that there was a conspir-asked and the objection was promptly overacy among those of the Charahus faction to ruled without explanation. In reply to one kill Barbas, Garines, and others of the oppos- of the objections the prosecutor said: ing faction. The evidence for the defense is to the effect that Charabus, Visvardis, and

“I will show who this witness is; it goes to Lardas were walking up and down the street his credibility.” in front of Mandolatos' coffee house; that

At another point the following colloquy finally Charahus went into the coffee house, took place: and Visvardis and Lardas took stations a

I ask. Charahus entered the coffee house Garines

“Nash: On this line I am, because it is imwalked out; that as he stepped onto the

proper. sidewalk Lardas began shooting at him; that

“Smith: You think it's improper. Now I subGarines returned the fire; that Visvardis mit to the court it is not improper. It goes to stepped out from the side of the building and the credibility of this witness, as to whether reached for his gun; that Garines shot him the jury can believe him on anything." and he fell to the sidewalk; that when the

Gus Michas testified on behalf of defendshooting began outside, Charahus drew his gun from his pocket and Barbas grabbed his ants that he operated the crap game for Barhand and engaged in a struggle with him, bas; that about two weeks before the day of

the shooting Charahus came into Barbas' and that during this struggle Charahus was

gambling house about 1:15 a. m. and asked shot.

Barbas why he had not closed his house at [1, 2] There are 1,100 pages of testimony 1 o'clock; that Barbas replied that he was in this record. About a score of witnesses busy and wanted to remain open about 20 testified for the people and an equal number minutes longer; that Charabus told him if he for the defense In many respects the tes- did not close his place at 1 o'clock he (Chartimony of the witnesses for the prosecution ahus) would close it with his own gun; that is directly contradictory of the testimony of Barbas replied that in the future he was gothe witnesses for the defense. It was for the ing to keep his place open all night, and that Jury to determine which set of witnesses was Charahus said that if he did he would fix telling the truth. Where the evidence is con- him; that on the date of the shooting he flicting, as it is in this case, the record, to walked past Mandolatos' coffee house and sustain a conviction, must be reasonably saw Charahus, Visvardis, and Lardas walkfree from substantial and prejudicial error. ing up and down the sidewalk in front of

Nick Funtall, who operated an hotel at the place; that as he passed them he heard 7171/2 South Halsted street, testified that Charahus say to Visvardis, “Why do you about three o'clock in the afternoon of the carry that gun in your pocket? Why don't day of the shooting Charahus came into the you use it?" that he went to a coffee house coffee house at 719 South Halsted street; in the neighborhood, and later to a barber that Visvardis, Lardas, and Spiros Konstan- shop across the street from the scene of the tatos were sitting at a table; that Charahus shooting; that during all this time Chara. appeared angry and abused Visvardis and hus, Lardas, and Visvardis were walking up his companions for not using their guns in and down the sidewalk in front of Mandolathe altercation with Garines the evening be- tos' coffee house; that he sat down in a bar. fore; that about an hour later he saw Char- ber chair to be shaved, and that while he ahus, Visvardis, and Lardas walking up and was being shaved he heard a shot; that he down the sidewalk in front of Mandolatos' looked out of the window and saw Garines coffee house; that he left at this time on a shooting toward the north and Lardas tostreet car and knew nothing about the shoot- ward the south; that Visvardis was standing. The cross-examination by the assist- ing near Lardas and during the shooting fell ant state's attorney, was in part as fol- to the sidewalk; that George Mistakus ran low's:

to the body of Visvardis, took his gun and

corner

(145 N.E.) ran away with it. During the cross-examina “Smith: I am trying to get into your record. tion of this witness, the following took

“Witness: Yes, sir. place:

"Q. Do you know a man named Judge Wil

liams? A. I do not. "Q. Were you ever in the penitentiary? A.

"Q. Was there any trouble in your place Yes, sir.

when Judge Williams was beat up in your "Q. What penitentiary were you in? A.

place at Seventy-Ninth and Halsted? A. No, Jackson, Michigan

sir. "Q. What for? A. Robbery.

"Q. About a year or a year and a half ago, "Q. When was the robbery committed ? A.

wasn't there a man beaten up in your place at In 1913.

Seventy-Ninth and Halsted? A. No, sir. "Q. Where were you arrested? A. Detroit.

"Q Was there an arrest at the place ? A. "Q. Where were you arrested first? A. In

No, gir Detroit.

"Q. Sure it wasn't at your place ? A. I am "Q. That is where you were arrested? A.

positively sure, Yes, sir. "Q. Were you arrested in Chicago May 7, the corner of Seventy-Ninth and Halsted?

"Q. You are the only Greek candy man on 1922? A. They arrested me for gambling. Q. How long did you serve in the Jackson, A..There is another one; there are two more.

"Q. You are the only Greek candy man on Michigan, penitentiary for robbery? A. Two

the corner? A. There is another one on the years."

"Q. A year and a half ago ? A. Yes; he was. Proper objections were made to all these

"Q. I am talking about the northeast corquestions, and the objections were curtly ner. A. Yes; I am on the northeast corner; overruled.

that never happened in my place as I know, During the cross-examination of William and I am there six years." Maneates, another witness for the defense,

Thereafter the prosecutor called Charles the following occurred:

A. Williams. a former judge of the circuit "Q. You have had a little trouble, have you, court of Cook county, and after locating the some time or other? A. With whom?

cigar store at the corner of Seventy-Ninth "Q With a shoulder, a little ? A. Where? "Q Shot through the shoulder ?

and Halsted streets, in Chicago, the follow“Nash: Object to that as improper; not ing examination took place: proper cross-examination.

"Smith: Did you ever have any difficulty in “Smith: All right.

that store? "Nash: What is the court's ruling?

"Nash: Just a minute, Judge. I object to “The Court: I don't know what he is alluding that, your honor, on the ground that it is not to, I am sure.

proper rebuttal, and it is improper, irrelevant, “Smith: I will withdraw it, if you don't and immaterial, and is, if it is anything, only want

additional proof of something I believe improp“Nash: I object to withdrawing it

erly admitted. "Smith: If you don't want it answered, I will “Smith: If the witness Maharas will lie withdraw it to save time.

about immaterial matters, he will lie about "Nash: Object to him asking a question of material matters. that kind in the presence of the.jury as being “Nash: Object to the statement of the designedly for the purpose of prejudicing and state's attorney, and move to strike it out. arousing the prejudices of the jury, and I “The Court: I will strike it out and overask the court to admonish him against any rule the objection. repetition of these improper actions.

“Nash. Also object on the further ground, “Smith: It's not som

your honor, that this question was asked in “The Court: If there is any reason to go on connection with the impeachment of Maharas, with that cross-examination, you can

and the witness has not stated that he knows “Nash: Well, I will ask the court

Maharas. "The Court: Or, if not, you shouldn't have "Smith: Maharas says there was never an started it; you should go on and show it; the altercation in his place—there never was any bullet wound is there, if he has any.

trouble in there, and idge Williams never "Smith (to witness): I will ask you, you are was beaten in there. in the bootlegging business now, are you? "Smith: Judge Williams, were you beaten up (Objection overruled.) A. I am cooking only. and attacked in the place on the northeast

"Q. Don't you sell wine over on Polk street? corner of Seventy-Ninth and Halsted? Wit(Objection overruled.) A. I can buy a gallon ness: I had a fight in that store once. for somebody else and I sell it; I don't sell no “Smith: Who did you have a talk with ? wine; I drink all myself."

“Witness: The man who owns the store.

"Smith: Were they employees? Michael Maharas, a witness for the defense,

"Witness: I don't know; they were back of testified that Lardas told him that he and the counter. Visvardis and Charahus had tried to kill

"Smith. Was there a court proceeding after

that? Garines and Barbas, and that instead of kill

"Witness: There was. ing them Visvardis and Charahus were

“Smith: What was the result of that court killed. On cross-examination the following proceeding? The defendants were in court, occurred:

were they, at that time? "Q. Did you ever go bonds for anybody charg "Witness: Men were in court; I don't reed with murder? A. No, sir; not me.

member who they were.

“Smith: And I will ask as to the location, not by this court. He has a right to be tried of the four corners of Seventy-Ninth and Hal- in accordance with the law of the land, and sted streets.

a conviction secured in total disregard of "Witness: It is the northeast corner.

that law cannot be sustained. People v. Gar"Smith: Judge Williams, will you tell me what the fight was about and how it started ?" diner, 303 Ill. 204, 135 N. E. 422. The law

does not provide one method for trying inProper objections were made to all of the nocent persons, and another for trying guilcross-examination of Maharas with respect ty persons. People v. Newman, 261 III. 11, 103 to the altercation with Judge Williams, and N. E. 589. Respect for the law and its propto all of the examination of Judge Williams er administration will not be established by on this subject, but all these objections were the lawless and unprofessional conduct of overruled. On cross-examination Judge Wil- those charged with the enforcement of the liams testified that he did not know the wit- law as shown by this record. We have quotness Michael Maharas, and that he did not ed enough of the testimony of the witnesses know who the two men were who were in improperly impeached to show that their tes. the place when he had his fight there, two or timony was material to the defense. For three years before.

the misconduct of the state's attorney in the During the direct examination of the de- examination of witnesses for the defense, and fendant Vithoulkas, the following occurred: the errors of the trial court in permitting

“Nash: After you talked to this man, were such misconduct, this case must be reversed. you called to any place-to the state's attor- People v. Decker, 310 Ill. 234, 141 N. E. 710; ney's office ? A. Yes, they let me tell the People v. Green, 292 Ill. 351, 127 N. E. 50; story

People v Simmons, 274 Ill. 528, 113 N E. "Smith: Answer your lawyer's question. 887. “Witness: How is that thing coming-his

On behalf of the people, the court gave to brother come there to see me. "Smith: I want to object to the witness'

the jury the following instruction: volunteering anything--any statement. I ob

“The court instructs the jury in the language ject to him answering counsel's question, and of the statute that if a person kills another I think he ought to be reprimanded for it.

in self-defense, it must appear that the dan. “The Court: This is one of the defendants, ger was so urgent and pressing that, in order and I give him more latitude than an ordinary to save his own life or to prevent him from witness. "Smith: It is just a lot of cooked-up stuff other was absolutely necessary, and it must ap.

receiving great bodily harm, the killing of the here. “Nash: I object to the remark as highly sailant, or that the slayer had really, and in

pear also that the person killed was the as. improper and prejudicial. The counsel said good faith, endeavored to decline any further it is a lot of cooked-up stuff. I want to struggle before the mortal blow was given." object to counsel's statement before the jury, and ask that the jury be instructed to disre

[6] This instruction is simply a copy of gard it, and that counsel be admonished.

section 149 of the Criminal Code (Smith. "The Court. It would be a question of argument, wouldn't it?

Hurd Rev. St. 1923, c. 38, § 367), and is an“Nash. It is, sometimes, but counsel ought other labor-saving makeshift commonly used to be admonished, in view of the repeated in homicide trials, but which does not give offenses in this line.

the jury any accurate knowledge of the law “Smith: This man bursts out with speech of self-defense. This instruction has been every time Mr. Nash asks him a question; repeatedly condemned. People v. Durand, Mr. Nash can hold him down, if he wants to. 307 Ill. 611, 139 N. E. 78; Kipley v. People,

"The Court: We all know what it is; we are 215 Ill. 358, 74 N E. 379; Steiner v. People, not blind; go on, Mr. Nash."

187 Ill. 244, 58 N. E. 383; Enright v. People, [3] This remark of the court was highly 155 Ill. 32; Gainey v. People, 97 Ill. 270, prejudicial. The court undoubtedly meant 39 N. E. 561 ; Campbell v. People, 16 III. 17, to insinuate that the defendant's testimony | 61 Am. Dec. 49. The law on this subject was was “a lot of cooked-up stuff" and that his announced in the Campbell Case in 1854, and attorney could control his testimony if he de the doctrine announced in that case has been sired. This impression is the only one that approved in every case since that time in the jury could have received, under the cir- which the question has arisen. There is no cumstances.

plausible excuse for the state's attorney of[4] Whatever explanation the trial officers | fering or the court giving an instruction so have to make of their conduct, the fact is long and so often condemned. that the defendants have not had a fair The judgment of the criminal court is retrial. Although there may be enough evi. versed, and the cause is remanded for a new dence in a record to justify a conviction, a trial. defendant has a right to a trial by jury and Reversed and remanded.

(146 N. E.) (314 III. 486)

struction that."to render the defense of alibi PEOPLE v. JOHNSON. (No. 16300.) available the evidence must cover the whole

of the time of the alleged commission of the (Supreme Court of Illinois. Dec. 16, 1924.) crime," held erroneous in depriving defendant

of the benefit of such testimony. 1. Criminal law Om510, 511 (1)-Conviction

may be sustained on uncorroborated tos. timony of confessed accomplice.

Error to Circuit Court, Will County; A. W.

De Selin, Judge. Convictions may be sustained on uncorroborated testimony of confessed accomplice, Benjamin Johnson was convicted of burbut such testimony is liable to grave sus- glary and of larceny, and he brings error. picion, and should be acted on with the ut- Reversed and remanded. most caution.

Schuyler, Ettelson & Weinfeld, of Chicago, 2. Criminal law 1165(1)-Conviction on un for plaintiff in error.

corroborated testimony of confessed acoomplice not confirmed, unless record free from w. Martin, State's Atty., of Joliet, and Ed

Edward J. Brundage, Atty. Gen., Robert prejudicial error. A conviction resting on upcorroborated tes

ward C. Fitch, Asst. Atty. Gen., for the Peotimony of confessed accomplice will not be ple. confirmed, unless record is free from substantial and prejudicial error.

THOMPSON, J. Plaintiff in error, Ben3. Witnesses 380(5)—Prosecution could not jamin M. Johnson, who was convicted in the

impeach own witness by proving inconsist. circuit court of Will county of burglary and ent statements.

larceny and sentenced to imprisonment in the The prosecution could not impeach witness- penitentiary, prosecutes this writ of error to es originally called by prosecution by prov. review the judgment. ing that they had on other occasions made Thomas Tong, the complaining witness, tesstatements different from those made in court. tified that some person or persons entered 4. Criminal law e11701/2(1)-Improper im- his chicken house during the night of March

peachment of Important witnesses held 4, 1924, and stole therefrom a large number ground for reversal.

of white Wyandotte chickens; that he did not Improper impeachment of witnesses whose know the exact number stolen but estimated testimony was important held ground for re- the loss to be about 80; that a band was versal.

placed around the leg of each chicken raised 5. Witnesses 345(2) Cross-examination during the season of 1923 so as to distinguish

of witness, as to whether she or her hus. it from the older chickens; that some of them band had been prosecuted for chicken theft, were marked with pink celluloid bands and held error.

others with a piece of insulated copper wire; In prosecution for larceny of chickens, that three days after the chickens were stolen cross-examination of defendant's witness, who he found some of them at the place of busihad testified to having sold chickens to defend-ness of Charles Madeja, in Chicago Heights, ant, as to whether she or her husband bad and others at the place of business of Amedeo ever been tried for stealing chickens, held Farina, in the same city; that one of the error, having no other apparent purpose than chickens found at Farina's place was identito discredit her testimony by prejudicing jury fied by him because it was crippled and walkagainst her.

ed in a peculiar manner; that the other 6. Criminal law am 682--Witnesses

389

chickens were identified because they had on Testimony as to statements made by defend their legs celluloid and wire bands similar to ant not proper evidence in chief, though prop- those with which he had marked his young er in rebuttal if denied.

Testimony as to statements made by de- chickens; that he had no other means of fendant held not proper evidence in chief, identifying the chickens except by the fact though proper in rebuttal if defendant had that they were white Wyandottes and were denied making statements to witness.

marked as his chickens were marked; that he 7. Witnesses 277(5)–Examination as to

took 30 chickens home and placed them in a number of times defendant had been in court pen for two days; that then he let them out before held error.

of the pen and they immediately mingled Examination of defendant at length on col- with the chickens he had at home, and went lateral and immaterial subject of how many into the chicken house with them. times he had been in court before held error.

Both Madeja and Farina testified that they 8. Criminal law Om815(5)-Instruction on evi. bought chickens on the morning of March 5 dence essential to prove alibi held improper. I chickens the evening before from Benjamin

from Henry Wigand; that they had ordered In prosecution for larceny of chickens claimed to have been stolen during certain hour Johnson (plaintiff in error), and that Wigand of night, in which defendant claimed an alibi, delivered the chickens for Johnson; that they and in which there was testimony that de- paid for the chickens by delivering to Wigand fendant was not at place where chickens were checks payable to the order of Johnson. A stolen during certain hours of the night, in- banker at Beecher, at whose bank Johnson

wFor other cases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes

conducted his business, testified that Johnson, March 4; that they had installed a new radio deposited the two checks March 6; and that and were listening to the program; that after $100 was credited to his account and $20.34 Mr. and Mrs. Fick returned all of them listenwas paid to him in cash.

ed to the radio program until about one Over the objection of plaintiff in error, an o'clock, when the Fick family retired; that attorney, Elmer Bielfeld, and a detective, Ed- he remained at the radio for a short time and ward Powers, testified that they visited plain- went upstairs to bed about 2 o'clock; that tiff in error in the county jail at Joliet, and as he went to bed he spoke to Mrs. Fick and asked him from whom he got the chickens told her to call him about 6 o'clock; that he which he delivered to Madeja and Farina; arose about 6 o'clock, had his breakfast, and that he replied that he bought them from a prepared to deliver chickens to his customers, man who came to his place of business in the Madeja and Farina, in Chicago Heights; afternoon of March 4, but that he did not that the night before the chickens had been know the man.

placed in coops, which were then put on the Henry Wigand testified that he had been truck and covered with a canvas; that the employed by plaintiff in error since December chickens placed in the coops were of many 20, 1923; that both of them boarded at the colors; that he had purchased them from peo. home of Louis Fick; that he and plaintiff in ple living in the neighborhood of Beecher, in. error passed the Tong farm in the afternoon cluding a Mr. Reaman, a Mr. Hayden, and a of March 4; that they saw a great many Mr. Werman; that many of the chickens chickens about the farm; that Johnson re were white; that he did not remember wheth. marked that that was a handy place to stealer their legs were marked with bands, but some chickens; that he and Johnson left the that he assumed many of them were, because Fick place about 11 o'clock in the night of it was a common practice in that neighborMarch 4 in witness' Gray coupé automobile; hood; that he sent the chickens to Chicago that they drove to the neighborhood of the Heights by Wigand; that Wigand returned Tong farm, and left the automobile on a side to him about noon and delivered to him two road about a quarter of a mile from the checks, which he deposited in the bank; that chicken house ; that they walked to the chick

and told him he wanted to make a pay. en house, entered it and filled 13 sacks with ment on his automobile, and that he gave him chickens; that they carried them across the a check for $40; that he owed Wigand for orchard to a point near where the automobile services more than $40 at that time; that he was standing; that they made two trips from did not give Wigand any cash on that occathere to Johnson's place of business, where sion; that he did not steal any chickens with the chickens were placed in coops and loaded Wigand and did not know that Wigand had onto Johnson's Ford truck; that they reached stolen any chickens; that he did not say to Johnson's place with the first load about 4 Bielfeld and Powers that he did not know o'clock a. m. and with the second load about the man from whom he bought the chickens, an hour later; that he delivered the chickens but that he did say to them that he could the following morning to Madeja and Farina; not give the name of the party or parties that he left Johnson's place with the chickens from whom he had bought them until he look. shortly before 6 o'clock a. m., that Johnson ed at his duplicate bills; that as soon as he gave him a personal check for $40 and $20 in was released from jail he consulted his bills cash as his half of the receipts from the and found the names of the persons from stolen chickens.

whom he had bought the chickens. Plaintiff in error testified that he was in Mrs. Edith Reaman testified that she had the produce business at Beecher; that his sold poultry, eggs, and butter to plaintiff in place of business was located at the residence error on three occasions during the year prior of Louis Fick; that he bought and sold poul- to March 4, 1924; that on that date she sold try, eggs, and butter; that Wigand was em- him about 350 pounds of poultry at 20 cents ployed by him, that they lived at the Fick resi- a pound, and some butter at 50 cents a pound; dence; that the Fick family was composed of that the chickens she sold him March 4 were Mr. and Mrs. Fick and their daughter, Aman- of mixed colors, and consisted of white Plyda; that all of them ate supper at the Fick mouth Rocks, white Wyandottes, barred Plyresidence shortly before 6 o'clock in the eve- mouth Rocks, Black Minorcas, Leghorns and ning of March 4; that Wigand drove away Rhode Island Reds; that she could not say from the Fick residence immediately after what portion of those she sold him were white supper; that Wigand did not return home Wyandottes but that many of them were; that night; that he did not see him again that she and her husband delivered the chickuntil he saw him return about 6:30 o'clock ens to Johnson's place of business in their the next morning; that Mr. and Mrs. Fick Ford car; that many of her chickens were left the house shortly after supper and went marked with celluloid bands around their to a party at the home of one of the neigh- legs; that it was her practice to mark the bors; that they returned home about mid-chickens of each season with a celluloid band night; that he and Amanda Fick remained so that she could distinguish the young from at the Fick residence all of the evening of the old; that she did not know that any of

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