THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, vs. CHARLES ROSS and JOSEPHINE PAWLAK, Appellants.
No. 40535
Supreme Court of Illinois
November 22, 1968
Rehearing denied January 28, 1969
41 Ill. 2d 445
SCHAEFER, J., dissenting.
JULIUS LUCIUS ECHELES and WARREN WOLFSON, both of Chicago, for appellant CHARLES ROSS.
JO-ANNE F. WOLFSON and BERNARD B. BRODY, both of Chicago, for appellant JOSEPHINE PAWLAK.
WILLIAM G. CLARK, Attorney General, of Springfield, and JOHN J. STAMOS, State‘s Attorney, of Chicago, (FRED G. LEACH, Assistant Attorney General, ELMER C. KISSANE and JOEL M. FLAUM, Assistant State‘s Attorneys, of counsel,) for the People.
Mr. JUSTICE KLUCZYNSKI delivered the opinion of the court:
Defendants Charles Ross and Josephine Pawlak were jointly tried and convicted of arson in a jury trial in the circuit court of Cook County. They appeal directly to this
Mrs. Pawlak further claims that her motion for discharge should have been allowed because she was not tried within “four terms of court” and that the attempted impeachment of her on rebuttal was improper. Ross asserts error was also committed when his motion for severance in the second trial was denied.
The indictment charged these defendants, together with Bernard Mayes and George Mauricaux, with having, on May 3, 1964, committed the offense of arson “in that they, by means of fire knowingly damaged the building of General Federal Savings & Loan Association, a corporation, without the consent of said General Federal Savings & Loan Association in violation of Chap. 38, section 20-1, Ill. Rev. Stat., 1963.” That section provides, in relevant part, “A person commits arson when: (a) By means of fire he knowingly: (1) Damages any building of another without his consent.” The section further provides that: “A building or property ‘of another’ means a building or property in which a person other than the offender has an interest which the offender has no authority to defeat or impair, even though the offender may also have an interest in the building or property.”
While conceding that the indictment charges the offense in the language of the statute, defendants contend that both the statute and the indictment are so vague and indefinite
We further find no basis for defendants’ contention that the indictment failed to inform them of the nature and cause of the accusation against them. Every indictment must be sufficiently specific to inform the offender of the nature and character of the accusation against him and to serve as a bar to a subsequent prosecution for the same offense. (People v. Patrick, 38 Ill. 2d 255; People v. Griffin, 36 Ill. 2d 430; People v. Johnson, 34 Ill. 2d 202; People v. Reed, 33 Ill. 2d 535.) The indictment in this case charged the offense in terms of the statute which is deemed sufficient to meet constitutional requirements “when the words of the statute so far particularize the offense that by their use alone an accused is apprised with reasonable certainty of
Defendants next contend that “even if the statute be held constitutional and the indictment under it proper“, there was no proof as charged in the indictment in that there was considerable variance between the State‘s proof and the allegation that the property was the “building of the General Federal Savings and Loan Association” on May 3, 1964. For the determination of this and the other contentions on appeal, we turn to the evidence adduced in the trial of this cause.
In January 1960, defendant Pawlak and her husband (since deceased) borrowed $75,000 from the General Federal Savings and Loan Association and to secure payment thereof executed a mortgage on the one-story restaurant and cocktail lounge, known as the Cottage Restaurant, located on the northeast corner of Mannheim and Butterfield roads in Bellwood, Cook County, Illinois. The premises were insured in the amount of $120,000. The business proved a failure and closed on January 5, 1964. At that time there was due and owing the sum of $76,922.86, representing principal and interest on the loan. There was also an outstanding chattel mortgage on the business fixtures with a balance of $11,000 or $12,000 due. The original cost of the liquor license amounting to $7000 was unpaid and, in addition, defendant Pawlak owed to the United States
On May 3, 1964, at 11:00 P.M., firemen of Bellwood responded to a fire at the premises. On inspection, after the blaze was extinguished, two “Martin” fuel oil cans were discovered in the boiler room and in the kitchen, respectively. Later, three five-gallon milk cans were found outside the rear door on the north side of the building. One of these cans was filled with flammable liquid and the other two were empty except for a thin film of sour milk. The premises contained a gas furnace but the gas had previously been turned off and the meter padlocked. Evidence of a flammable fluid was found in partially consumed carpeting in the west end dining room area and a piece of the rug, removed and tested by a chemist, disclosed that it contained a flammable substance similar to naphtha. There was testimony that the walls bulged out, causing a collapse of the east, west and south walls, and the grilles of a return air duct, normally imbedded in the floor, were blown up and out. An expert concluded that vapors from a flammable liquid had exploded within the building and in his opinion the fire was definitely of incendiary nature.
Although the cause of the fire was an immediate subject of investigation, it was not until December, 1964, that George E. Mauricaux was taken into custody and confessed culpability in the arson, implicating Bernard Mayes and these defendants. All four were indicted but these defendants were granted a severance and tried jointly.
Mauricaux, who was the State‘s chief witness, testified that he had known defendant Mrs. Pawlak for about 17 years and worked for her intermittently and at various
Portions of Mauricaux‘s testimony were corroborated by the testimony of his girl friend and that of the hardware store owner. The girl friend, Cathy Kunkel, who in August, 1964, had entered a religious order and was a novice in a convent when she testified, recalled being with Mauricaux on a Sunday afternoon about three weeks after the fire when they drove up to Ross‘s house. Ross and Mayes got into the back seat of the car and she heard Ross ask Mauricaux for the money for the job. When Mauricaux said he didn‘t have it, Ross replied: “We want the money, we are waiting for it.” She heard Ross say that they had set off such a good fire that the police thought it was a professional job. Mayes agreed. One of them, she said, mentioned the fact that the fire went up so quickly that he had to leave his glove there. The fire chief had testified to finding a pair of canvas gloves in the boiler room. She accompanied Mauricaux when he picked up Mrs. Pawlak at the restaurant on several occasions. While in the car, on one of those occasions about three weeks after the fire, she heard Mauricaux ask Mrs. Pawlak if she had the money and Mrs. Pawlak replied that she could not get it. Two weeks later, Mauricaux again asked for the money because he said the boys were asking for it. Mrs. Pawlak said the insurance had not gone through and so she didn‘t have it. She overheard a similar conversation between Mauricaux and Mrs. Pawlak some time in June. The hardware store owner testified that he knew Mauricaux some 17 years, that
Direct and cross-examination developed that Mauricaux, 32 years of age, had elementary education up to the seventh grade and could read and write a “little“. He had intermittent employment and after the death of his mother lived with a mentally disturbed sister. When testifying under oath before the fire marshal he did not tell the whole truth. He said that when he appeared before the grand jury in October, 1964, he did not tell the truth “about the fire“. He did, he said, tell the truth when he again appeared before the grand jury in January 1965. In 1961, after being jailed on a minor offense, it was suspected that he attempted suicide and as a result spent about 44 days in some mental institutions. In 1963, he served in the Army for about six months and was discharged because he “could not adjust to military service.” In the Fall of 1964 Mauricaux contended he was a partner in the restaurant business Mrs. Pawlak established with $2300 she obtained from his mother. The dispute precipitated his arrest when he entered the restaurant in possession of a pistol. In January, 1965, he caused her arrest on a warrant charging her with theft of the $2300. Both matters were dismissed for want of prosecution. After confessing his culpability in December, 1964, he remained in the witnesses’ quarters at the county jail until December 1965. The State paid $310 for his dental care and he received a loan of $50 from the Illinois Crime Commission for the installation of a phone in his home after the death of his mother. He had not repaid this loan.
Ross, testifying in his own defense, denied any part in setting the fire. He claimed that the card with Mrs. Pawlak‘s number found in his garage, was there at Mauricaux‘s request because he could be reached there whenever Ross had a cheap used car for sale. He also contended that from
Seth Layne testified that in May, 1964, he was a deputy sheriff in Marion County, that he arrested and lodged Ross in jail on May 3, 1964, for being drunk and recorded the arrest in the “Register of Prisoners Committed to County Jail” on that date. A register was introduced in evidence showing an entry at the bottom of page 29 thereof that Charles E. Ross was charged with public drunkenness by Layne on May 3, 1964, and was released on May 4, 1964, by “Cash Bond paid by father“. Layne said Ross‘s father had called and assured him on May 4 that he would stand good for his son‘s fine. He then released Ross, although he admitted that a formal release issues after the fine is paid to the circuit court clerk. The fine was paid by Ross‘s father to Layne on December 14, 1964, and a receipt obtained from the court clerk. This was after the time Cook County officials had made contact with the sheriff‘s office of Marion County regarding Ross. Layne said that he did not recognize a photograph of Ross when shown to him by Illinois officials but that he did recognize him as the man he had arrested when confronted with Ross in person, in company with Ross‘s counsel. Both Ross‘s father and father-in-law testified substantiating his account of his presence in Marion County in May of 1964.
David Braden, deputy sheriff of Marion County, testified that he was the jailer of the county jail in May, 1964, that he knew Ross‘s father well and Ross slightly, and that he did not see Ross in the Marion County jail on May 3, 1964, but couldn‘t say positively that he was not there. Ruben Hudson, also deputy sheriff of Marion County, and keeper of the records for the sheriff‘s department, testified
Mrs. Pawlak took the stand and denied any implication in the offense charged, denied any conversations with Mauricaux regarding the fire and further denied knowing either Ross or Mayes. She introduced witnesses who testified to her good character, and the bad reputation of Mauricaux for telling the truth. In rebuttal, Lt. King of the Chicago Police Department on loan to the Illinois Crime Commission, testified that, subsequent to her arrest, Mrs. Pawlak admitted talking with Ross and Mayes but claimed that fact didn‘t indicate she had anything to do with the arson.
We have intentionally particularized the evidence in this case due to the defendants’ insistence that there was a fatal variance between the proof and the indictment and that the evidence was insufficient to establish their guilt beyond a reasonable doubt.
We find no variance between the accusation as described in the indictment, i.e., that defendants, by means of fire, knowingly damaged the building of the association, and the proof adduced at the trial. “Building of another” as defined by the statute, encompassed the type of lien interest and possessory right of the association in the case. De-
In support of their charge that the evidence “is so inclusive and unsubstantial, so bizarre in the making as to call for a reversal“, defendants argue that their convictions depend upon the “uncritical acceptance of a psychotic liar and admitted perjurer whose bias, prejudice, vindictiveness and motivation for lying was amply demonstrated.” It is undeniable that the State‘s case depended to a large extent upon whether the jury would believe the testimony of Mauricaux, the admitted go-between and accomplice in the arson. However, it must be noted that even the uncorroborated testimony of an accomplice, if it satisfies the court or jury beyond a reasonable doubt, is sufficient to sustain a conviction of a felony. Such testimony is not of the most satisfactory character and often is attended by serious infirmities (such as malice towards the accused, promises or hopes of leniency, or the hope of benefits from the prosecution). Yet, “Such infirmities, in turn, go to the questions of the weight of the evidence and the credibility of the witnesses, matters peculiarly within the province of the court or jury in the first instance, and if the jury or trial court is satisfied by the testimony of an accomplice that the defendant is guilty beyond a reasonable doubt, we will not disturb a conviction on review unless it is plainly apparent that such degree of proof is lacking.” (Emphasis ours.) People v. Hansen, 28 Ill. 2d 322, 332, 333.
Mauricaux‘s testimony was consistent on all material issues and in addition was corroborated by other witnesses and physical facts. The gas cans Mauricaux said were given to him by Ross were found outside the premises. The card with Mrs. Pawlak‘s phone number which he said he gave
Defendants maintain that they were denied an opportunity to impeach Mauricaux on the basis of statements he made to police on December 2, 1964. When testifying, Mauricaux stated that the interrogating officers wrote down what he said when he was questioned that day in the offices of the Illinois Crime Commission. There is no question but that such statements are subject to discovery, the general rule being that “the prosecution is required to furnish on demand to the defendant for impeachment purposes specific statements in its possession made by a State‘s witness which have been established to exist and which are the witness’ own words or substantially verbatim.” People v. Neiman, 30 Ill. 2d 393, 397.
A determination of whether defendants were denied their rights requires an examination of the facts surrounding the demand for the writings. After Mauricaux made the statement that the officers of the Illinois Crime Commission wrote down what he was saying on December 2, 1964, defense counsel demanded the production of the statement.
We find no denial of access to the witness‘s statement for impeachment purposes. The court did not deny the defense access to any available records. Although Mauricaux‘s testimony was that a writing was made on December 2, there was no showing that any writing was in existence nor did the defense seek to probe beyond the contents of the prosecutor‘s file at the time to determine if any notes or statements were made.
We also find no merit to defendants’ charge that secret ex parte proceedings were conducted between the prosecutor and the court denying them their constitutional right to be present at all stages of the proceedings. The basis of this claim was the trial court‘s issuance, on the State‘s motion, of a certificate pursuant to the “Uniform Act to Secure the Attendance of Witnesses From Within or Without a State In Criminal Proceedings” (
Mrs. Pawlak claims that she was not “tried within four terms of court” as provided by
The first trial was disrupted by virtue of a mistrial on September 29, 1965, and continued to November 15, on which later day she demanded trial. The cause was then continued several times thereafter on the State‘s motion until February 28, 1966, over defendant‘s objection and demands for trial. After the case was called for trial on the latter date, the State made application by affidavit alleging that one David Blake Braden was a material and essential witness, that the State‘s Attorney had exercised due diligence to produce this witness before the court on March 1, 1966, that he was then hospitalized in Pittsburg, Tennessee, and would remain so for some time but that there was reasonable ground to believe that this witness could be produced at a later date, and requesting that the court “extend the time under which the Fourth Term Act for a period of sixty (60 days) as to the above captioned defendant” pursuant to
She now argues that the extension of time was not valid as to her because the witness Braden was a prospective rebuttal witness only against co-defendant Ross, citing his lack of testimony against her at the first trial. The State contended she was criminally accountable for the arson only if her agents set the fire, as evidenced by its instruction to the jury that if they “found beyond a reasonable doubt that the burning of the Cottage Restaurant was the act of one defendant and another defendant aided, abetted or encouraged either directly or indirectly the first defendant then both are guilty of the crime of arson” pursuant to
We next consider defendant Ross‘s charge that the court erred in denying his motion for severance made in advance of the second trial. The affidavit filed in support of Ross‘s petition for severance charged, inter alia, that a prosecution witness, Lt. King, testified as to the content of a conversation with co-defendant Mrs. Pawlak on December 3, 1964, outside his presence. In the conversation Lt. King suggested that Mauricaux had discussed with her Ross‘s participation in the crime, and she replied, “Yes, but you don‘t believe him, do you?” Ross‘s objection to the testimony was sustained. The affidavit also stated that defense counsel was informed and believed the above testimony would be reintroduced at the retrial and would prejudice Ross in the eyes of the jury.
With regard to a severance, “the general rule is that where one or more defendants are jointly indicted for the commission of a crime, they are to be tried together; and whether a separate trial should be granted is largely within the sound judicial discretion of the trial court. (People v. Barbaro, 395 Ill. 264; People v. Mutter, 378 Ill. 216.)” (People v. Grilec, 2 Ill. 2d 538, at 546, 547.) Ross contends that the failure to sever the prosecutions was an abuse of such discretion because his affidavit demonstrated how he would be prejudiced in a joint trial, namely, by Lt. King‘s hearsay testimony linking him with Mrs. Pawlak. The use of this testimony at trial is also assigned as error although the court by instruction limited its application to Mrs. Pawlak. In past cases, where the defenses were not antagonistic and cautionary instructions were given, as herein, a
In Bruton, the Court held that in a joint trial the admission of a co-defendant‘s extrajudicial confession inculpating the defendant was reversible error notwithstanding that the jury was instructed to disregard it in determining the latter‘s guilt or innocence. In that case, the confessing defendant did not testify, thus denying the nonconfessing defendant his constitutional right to confront and cross-examine the witnesses against him. (See Pointer v. Texas, 380 U.S. 400, 13 L. Ed. 2d 923, 85 S.Ct. 1065.) Moreover, the prejudicial effect of the inculpating confession was intensified since the other evidence of defendant‘s guilt was slight. As such, Bruton is clearly distinguishable from the instant case. The hearsay statement complained of did not directly implicate Ross in the crime charged; it was merely evidence that he knew Mrs. Pawlak, a fact otherwise established by the testimony of Mauricaux and Cathy Kunkel and by Ross‘s possession of Mrs. Pawlak‘s card. Furthermore, Mrs. Pawlak took the stand and denied knowing Ross or making such a statement. Under these circumstances, the prejudice to Ross was not so great as to render the denial of a severance an abuse of discretion or to otherwise require the granting of a new trial.
Finally, defendant Mrs. Pawlak, claims that the impeachment of her testimony on rebuttal by Lt. King was improper. In particular, she complains of certain of his remarks to the effect that “they checked out” Mauricaux‘s story and found it to be the truth. Unless incompetent
We have carefully considered the foregoing contentions, as well as all other arguments advanced by defendants. We find no reversible error was committed and therefore the judgment of the circuit court of Cook County is affirmed.
Judgment affirmed.
Mr. JUSTICE WARD took no part in the consideration or decision of this case.
Mr. JUSTICE SCHAEFER, dissenting:
This case was tried twice. The first trial resulted in a hung jury, which is the “mistrial” referred to in the majority opinion. Prior to the second trial, the defendant Ross moved for a severance on the ground that at the first trial Lt. King had testified to statements, allegedly made to him by the defendant Pawlak, which implicated Ross in the crime. The motion for severance was denied.
At the second trial the prosecution again called Lt. King, on rebuttal, and the following occurred:
Q. “Tell the court and jury what was said by you, what was said by Mrs. Pawlak.
“KING: I said to her, ‘I am surprised, disappointed in you.’ And she said, ‘You don‘t believe everything that Mauricaux told you, do you?’ I said, ‘I do. Because--”
“Mr. WOLFSON: On behalf of Ross object to this entire testimony.
“The COURT: “It doesn‘t pertain to Ross at this point.
No one contends that this hearsay testimony was admissible against Ross, and in my opinion the Bruton case requires that the judgment be reversed as to him. The majority attempts to distinguish Bruton on grounds which, in my opinion, are inadequate. Despite the majority‘s assertion to the contrary, Lt. King‘s hearsay statement directly implicated Ross in the crime charged. There were no “cautionary instructions” in this case. The only statement made by the trial judge with respect to this testimony was his ambiguous observation, when overruling Ross’ objection to the alleged conversation, “It doesn‘t pertain to Ross at this point.”
The majority states that Mrs. Pawlak took the stand and denied making this statement. I am unable to see how that fact affords a basis for distinguishing this case from Bruton. What was said by the United States Court of Appeals for the Sixth Circuit in Townsend v. Henderson (No. 18516, decided December 26, 1968, 4 Cr. L. 2338), would then be pertinent. “The only possible distinction between the present case and Bruton is that in Bruton the co-defendant did not take the witness stand, whereas here Terry did testify in his own behalf. But, this distinction is unimportant since, although Terry was called as a witness, he denied making the confession. Townsend therefore had no effective right of cross-examination in regard to the confession. A similar question was presented in Douglas v. Alabama, 380