69 N.E.2d 512 (Ill. 1946), 29625, People v. Del Prete

Docket Nº29625.
Citation69 N.E.2d 512, 395 Ill. 110
Case DateSeptember 18, 1946
CourtSupreme Court of Illinois

Page 512

69 N.E.2d 512 (Ill. 1946)

395 Ill. 110




No. 29625.

Supreme Court of Illinois

September 18, 1946

As Modified on Denial of Rehearing Nov. 18, 1946.

Page 513

Orr, Lewis & Orr, of Chicago (Warren H. Orr, Wallace W. Orr, and Haskell F. Lamm, all of Chicago, of counsel), for plaintiff in error.

George F. Barrett, Atty. Gen., and William J. Touhy, State's Atty., of Chicago (Edward E. Wilson, John T. Gallagher, Melvin S. Rembe, and C. D. Pemberton, all of Chicago, of counsel), for the People.

[395 Ill. 111] FULTON, Justice.

In January, 1935, plaintiff in error, Cosmo Del Prete, was convicted of the crime of armed robbery by a jury in the criminal court of Cook county. He was also found guilty under the Habitual Criminal Act and sentenced to the penitentiary for his natural life. On writ of error to this court, the cause was reversed and remanded. People v. Del Prete, 364 Ill. 376, 4 N.E.2d 484.

Upon a second trial on January, 1937, he was again convicted of armed robbery and found guilty under the Habitual Criminal Act. Motions for new trial and in arrest of judgment were overruled and he was sentenced to the penitentiary for his natural life. A stipulation shows that the defendant previously, on July 22, 1927, pleaded guilty and was sentenced to imprisonment for grand larceny. He has sued out this writ of error to review the judgment entered on the second trial.

The former judgment was reversed largely because of the prejudicial cross-examination by the State's Attorney who was permitted to examine the defendant in detail about a former conviction and because the cross-examination of the prosecuting witness concerning identification was unduly limited and restricted. It was the conclusion of this court that upon another trial there should be a greater latitude of cross-examination permitted without unnecessary and improper interruptions.

Because of the errors assigned it is necessary to recite the main facts shown in the record. The testimony of the complaining witness, John Korenevich, shows that on September 7, 1934, he made a trip to the bank of Napoli, located on the corner of Halsted and Forquer streets in Chicago, for the purpose of cashing some checks. He left the bank with $92 in cash, got in his car and drove west. Two men in a Ford car pulled up alongside of him, and one of the men jumped on the running board of his car and ordered him to back up and then turn into an adjacent [395 Ill. 112] alley and stop. The intruder then got into the back seat of the Korenevich car and at that time held a revolver in one hand, and with the other held a handkerchief over the lower part of his face. The man gave Korenevich a number of oral directions and, after the car was parked in the alley, climbed up in the front seat, at the same time removing the handkerchief from his face and placing it in his pocket. The robber then searched Korenevich's pockets, pistol in one hand, removed his money and completed the robbery by taking away the sum of $92. He told Korenevich to wait there in the alley for three or four minutes,

Page 514

which he did, and then went direct to the police station. Korenevich described the robber as a man about 5 feet 10 inches in height and weighing about 175 pounds; that he was wearing a dark suit and a hat; that he saw the man with his face uncovered for a period of three or four minutes and that the robbery occurred in the day-light a few minutes after four o'clock in the afternoon.

Korenevich further testified that just a week later, on September 14, he saw the defendant standing at the northwest corner of Halsted and Taylor streets and he immediately called up the police, met two officers in a squad car, identified the defendant as the man who had robbed him and caused his arrest. At the police station he again identified the defendant and the next day signed the formal complaint.

The defendant, Cosmo Del Prete, took the stand and told of his whereabouts on September 7. He said he left home about a quarter of ten in the morning and went downtown for a physical examination, leaving the building a little after 12 o'clock noon; that for a time he watched a fire at the corner of Wabash and Roosevelt; that he then walked down Michigan avenue because he had nothing to do and it was his day off; that he turned west on Madison street and about 2:30 p. m. went to the Palace theater and saw a moving picture show, remaining[395 Ill. 113] there until about five o'clock and then returned to his home.

A sister of the defendant, Mary Ferrarra, and her husband testified that they called upon Korenevich in the fall of 1936, seeking to have him write the Governor and the Board of Pardons and Paroles. They told him Cosmo's mother had died and asked him to write a letter and say that he was not sure that Cosmo was the man who held him up. They further testified that Korenevich told them he was not sure but he was frightened of what they would do to him; that he had seen two men on the street since then that looked like the defendant and he did not want a guilty conscience. This testimony was emphatically denied by Korenevich. In rebuttal he testified that he had never said to anyone that he was not sure that the defendant held him up.

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