People v. Del Prete

Decision Date18 November 1946
Docket NumberNo. 29625.,29625.
Citation69 N.E.2d 512,395 Ill. 110
PartiesPEOPLE v. DEL PRETE.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Error to Criminal Court, Cook County; John Prystalski, Judge.

Cosmo Del Prete was convicted of armed robbery, and he brings error.

Affirmed.

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.

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 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, 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 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.

One of the main contentions relied upon by the plaintiff in error is that the State has not identified defendant as the person who committed the crime charged, and has failed to meet its burden of proving identification in the degree required by law. Korenevich definitely and positively designated the defendant as the man who robbed him on September 7, 1934. He had the apportunity of observing him at close range for three or four minutes during the time the man sat in the car seat with him and while he was being robbed; he recognized him a week later when he saw him on the corner of Halsted and Taylor streets. He pointed him out to the officers and asked for his arrest; he identified him at the police station and on each and every occasion he had stated in positive terms that Del Prete was the man who robbed him. The plaintiff in error argues many things the witness did not see and did not cover in his testimony rather than what was apparent. He says that because Korenevich did not notice the man's complexion, his facial features, distinguishing characteristics of the eyes, the face, the shape of the nose and other physical features or mannerisms, he must have had a blurred memory of what the man looked like. In the cross-examination of the witness, none of these questions were asked. After asking Korenevich about the color of the man's suit, whether or not he wore a tie, whether he had a sweater on under his coat and about his shirt, the cross-examination on the question of identity ceased. There was no objection made to the cross-examination and no limitation or restriction imposed thereon.

On the question of sufficiency of identification, plaintiff in error cites a large number of Illinois cases. A few of those primarily relied upon are, we think, easily distinguished from the present case. In People v. Gold, 361 Ill, 23, 196 N.E. 729, 732, it was said: ‘No man should be deprived of his liberty unless his identification as the party charged with a crime is under such circumstances and with...

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7 cases
  • Creighton v. Elgin
    • United States
    • Supreme Court of Illinois
    • 18 d1 Novembro d1 1946
  • People v. Keagle, 33614
    • United States
    • Supreme Court of Illinois
    • 30 d3 Novembro d3 1955
    ...... There is no question but that the State must prove, beyond a reasonable doubt, the perpetration of the crime by the person accused, People v. Kidd, 410 Ill. 271, 102 N.E.2d 141; People v. Del Prete, 395 Ill. 110, 69 N.E.2d 512, but this is ordinarily a question of fact for the jury. People v. Tomaszewski, 406 Ill. 346, 94 N.E.2d 154; People v. Leach, 398 Ill. 515, 76 N.E.2d 425. We will not reverse a conviction on the question of sufficiency of identification unless it is contrary to the ......
  • People v. Potcher
    • United States
    • United States Appellate Court of Illinois
    • 6 d4 Fevereiro d4 1975
    ...reasonable doubt, the perpetration of the crime by the person accused, People v. Kidd, 410 Ill. 271, 102 N.E.2d 141; People v. Del Prete, 395 Ill. 110, 69 N.E.2d 512, but this is ordinarily a question of fact for the jury. People v. Tomaszewski, 406 Ill. 346, 94 N.E.2d 154; People v. Leach,......
  • People v. Kelly, 58629
    • United States
    • United States Appellate Court of Illinois
    • 24 d5 Janeiro d5 1975
    ...conviction and incarceration, reference during closing argument by the prosecutor to that fact is not prejudicial. (People v. Del Prete, 395 Ill. 110, 69 N.E.2d 512.) Furthermore, it has been held that a prosecutor may draw inferences unfavorable to defendant if based on the evidence and ma......
  • Request a trial to view additional results

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