People v. Andrae
| Decision Date | 19 December 1922 |
| Docket Number | No. 14373.,14373. |
| Citation | 305 Ill. 530,137 N.E. 496 |
| Parties | PEOPLE v. ANDRAE. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Criminal Court, Cook County; John J. Sullivan, Judge.
Harry Andrae was convicted of burglary, and he brings error.
Affirmed.Eugene L. McGarry, of Chicago (Thomas E. Swanson, of Chicago, of counsel), for plaintiff in error.
Edward J. Brundage, Atty. Gen., Robert E. Crowe, State's Atty., of Chicago, and Floyd E. Britton, of Springfield (Edward E. Wilson and William Scott Stewart, both of Chicago of counsel), for the People.
Shortly after midnight of February 6, 1920, four men entered the factory of the Western Shade Cloth Company, seized and bound the inside watchman, the engineer and fireman, and later shot and killed the outside watchman, who refused to throw up his hands upon demand. Plaintiff in error and others were indicted for this murder. A verdict of guilty was returned, and the judgment entered on that verdict was reversed by this court in People v. Andrae, 295 Ill. 445, 129 N. E. 178. The cause was remanded, and on a retrial plaintiff in error was found not guilty of murder. He was afterwards indicted and convicted for burglary. This writ of error ws prosecuted to review the judgment in the burglary case, and it is that judgment which is now before us for review. For a more complete statement of the facts we refer to our former opinion in the murder case, and it will be unnecessary to restate them here in detail.
One of the contentions made by plaintiff in error is that hte people failed to prove the corporate existence of the Western Shade Cloth Company. The secretary of the company testified that he had been connected with it for 16 years: that the business of the company was managed by a board of five directors, naming them; that it had a presidentand a vice president, stating their names; that it had a charter issued by the state of Illinois; that it had been doing business under its charter in the city of Chicago during the 16 years of his connection with it; that he had seen the charter, which he thought was out of the state, and for that reason was not available as evidence; and that as secretary of the company he had attended meetings of the board of directors of said company. There was no proof to the contrary, and under the statute authorizing proof of the legal existence of a corporation by user the foregoing evidence sufficiently supported the allegation of the indictment. Graff v. People, 208 Ill. 312, 70 N. E. 299;People v. Fitzgerald, 297 Ill. 264, 130 N. E. 720.
A witness was erroneously permitted by the court, over the objection of plaintiff in error, to answer directly that the company was corporation on February 7, 1920. This was a mere conclusion of the witness;but the error was harmless, as the other proof established that the company was prima facie a corporation.
Guy Wadsworth, an accomplice in this crime and a self-confessed thief and burglar, testified at the former trial of plaintiff in error for murder, but was not called as a witness at this trial. Two police officers and a stenographer testified to a statement made by Wadsworth in the presence of plaintiff in error in the state's attorney's office, in which Wadsworth recited in detail the occurrences of the night of the burglary, and said, in substance, that plaintiff in error was one of the four men who entered the building with him, and that he was the man who shot and killed the watchman. Plaintiff in error heard Wadsworth's entire story, which is set out in detail in our former opinion. At the conclusion of it the assistant state's attorney, Lowery, who was conducting the examination, said to plaintiff in error, ‘What have you got to say, Andrae?’ and plaintiff in error replied, ‘I can't say nothing, Mr. Lowery,’ or, ‘What can I say, Mr. Lowery?’ It is contended that, as Wadsworth's story was the result of a promise of immunity, it was not admissible as evidence against Andrae. Wadsworth's statement under a promise of immunity would not have been admissible against himself, if he were being prosecuted for this crime; but the fact that he had been promised immunity would not affect the competency of his statement as a witness for the people against Andrae, if the statement is otherwise admissible. The fact that Wadsworth had been promised immunity could only be considered by the jury as affecting the credibility of his evidence, and not as to its admissibility against Andrae.
The rule in relation to the admissibility of statements by another, made in the presence of the accused, is that, if the circumstances are such that a person so situated would naturally deny it or make explanation and fails to do either, the evidence is admissible. People v. Lopez, 296 Ill. 438, 129 N. E. 791. Neither of the above answers of Andrae to the state's attorneyamounted to a denial of his guilt, or to an explanation on his part or modification of the damaging facts related by Wadsworth. Whether or not what he then said, and his failure to deny guilt or make explanation to the state's attorney, amounted to an implied admission of guilt, is a question of fact to be determined by the jury. There is no showing in the record that Andrae was taken by surprise, or had not sufficient time to consider what answer he should make. The statement of Wadsworth was quite lengthy, and must have occupied at least a half hour of his time in making it. There is no contention that Andrae was not given full opportunity to answer, or that he was not advised of his rights and did not know what reply to make. His only excuse or explanation is that they were not his entire answers and that he told the state's attorney that Wadsworth's statement was a lie. Whether or not Wadsworth's statement was true or false was a question of fact for the jury. Said statement was admissible on the theory that plaintiff in error, having heard it, and having had due time to consider it, and having failed to repudiate it, adopted it as his statement. People v. Cardinelli, 297 Ill. 116, 130 N. E. 355;People v. Paisley, 299 Ill. 576, 132 N. E. 822. Whether the conduct and statement of plaintiff in error, taking into consideration all the surrounding circumstances, amounted to a confession of guilt, was a question of fact for the jury.
The court received in evidence a bag full of revolvers, burglar's tools, and explosives, a part of these articles having been found at the scene of the crime, but most of them having been found hidden at Wadsworth's home, and it is contended that the court's action in this regard was error. It is manifest from the evidence in the record that the two revolvers introduced in evidence were shown to have been in the possession of Andrae and one of his associates at the time the crime here in question was committed. In a criminal case the jury may take with them only those objects which are directly connected with the subject of judicialinvestigation, and it rests in the discretion of the trial court whether these objects may be carried from the bar by the jury. People v. Clark, 301 Ill. 428, 134 N. E. 95. In his statement in the presence of Andrae, Wadsworth described practically all of the burglar's equipment that was received...
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