People v. Barg
| Decision Date | 11 November 1943 |
| Docket Number | No. 27175.,27175. |
| Citation | 51 N.E.2d 168,384 Ill. 172 |
| Parties | PEOPLE v. BARG. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Criminal Court, Cook County; John A. Sbarbaro, Judge.
Jack Barg was convicted of larceny of motor vehicle tires and former conviction of felony, and he brings error.
Reversed and remanded with directions.George M. Crane, Emmett A. Moynihan, Ellis & Westbrooks, and Joseph J. Attwell, Jr., all of Chicago (Richard E. Westbrooks, of Chicago, of counsel), for plaintiff in error.
George F. Barrett, Atty. Gen., and Thomas J. Courtney, State's Atty., of Chicago (Edward E. Wilson, John T. Gallagher, and Melvin S. Rembe, all of Chicago, of counsel), for the People.
The defendant, Jack Barg, was indicted in the criminal court of Cook county for the larceny of a motor vehicle tire, larceny of personal property, including a tire having a value in excess of $15, and receiving stolen property, including a tire, having a value of more than $15, the property of Anon K. Mose. By a second indictment, the same crimes were charged with respect to the property of Edwin Gaenzle. Each indictment charged defendant's previous conviction of the crime of robbery. The causes were consolidated for trial, defendant pleaded not guilty and waived a trial by jury. He was found guilty in each cause of stealing a motor vehicle tire and of having been formerly convicted of a felony, and sentenced on each indictment to a fixed term of ten years in the penitentiary, the sentences to run concurrently. Defendant prosecutes this writ of error.
From the evidence adduced by the People it appears that on July 30, 1942, about 4 o'clock a.m. Dorothy Gaenzle, 6128 North Hamilton Avenue, Chicago, was awakened by a noise and, from her window, saw a man removing golf clubs and a tire from the trunk of her husband's automobile. She testified that another man was seated in a maroon-colored car, equipped with white wall tires, which she described as a Studebaker or Oldsmobile automobile, and that she ordered the men away. Her husband, Edwin F. Gaenzle, one of the prosecuting witnesses, testified to the same effect, adding that he carried a spare tire and wheel valued at $50, and two sets of golf clubs valued at about $25 per set, in the trunk of his car, and that, later the same morning, at the police station, he identified his tire by its number and, also, his golf clubs. The second complaining witness, Anon K. Mose, testified that on July 30 he parked his Buick automobile about thirty feet south of his residence, 6153 North Hamilton avenue; that there was a tire mounted on a wheel and, also, a spare tube in the trunk of his car, and that he subsequently identified his property at the police station by the tire number. According to the testimony of police officer Harry Rosensweig, he and another officer, Perry Epperly, were cruising in a squad car at Devon avenue and Broadway about 4 o'clock a.m. on July 30, when, in response to a radio message they proceeded to an address given as 6140 North Hamilton avenue, where two men were reported tampering with an automobile. Driving south on Hamilton avenue from Devon avenue, their attention was attracted by an unlighted automobile headed north on the same street. Rosensweig testified that he saw no other cars in the vicinity; that, as the police car approached, the unlighted car turned east on Granville avenue, two blocks south of Devon avenue and the first street north of 6140 North Hamilton avenue; that he and his fellow officer pursued the car, and that one of them fired a shot at the automobile which immediately stopped on the east parkway of Winchester avenue, about two blocks east of Hamilton avenue and a short distance north of Granville avenue. Both occupants of the automobile attempted to escape. One succeeded, but the other, identified as the defendant, was apprehended, he having fallen out of the automobile onto the parkway. Rosensweig testified further that he searched defendant on suspicion he might be ‘involved in something,’ and obtained the keys to the trunk of the car which, when opened, contained five tires and two sets of golf clubs. The officer added that, when arrested, defendant was not intoxicated although it was evident he had been drinking. Epperly corroborated Rosensweig and testified to firing a shot at defendant's automobile and, also, at the occupant who escaped. Police officers James Duffy and Waldo Anderson, assigned to the investigation of stolen automobiles, testified that about 10 o'clock a.m. July 30, defendant admitted the theft of the tires, declaring he needed them to make a contemplated trip to California. It appears that the officers last named made no formal report regarding defendant's purported admission, and that he later refused to make a written statement and denied taking the tires.
Joseph Katz, a bartender, testified that defendant visited his tavern at 3044 West Madison street about 8 or 8:30 p.m. on July 29, with a man whom he introduced as Jack Levine; that Levine borrowed defendant's automobile, defendant remaining in the tavern during his companion's absence, and that when Levine returned about 2:45 a.m. on July 30, he Katz, suggested to Levine that the latter drive defendant, then ‘pretty well under the weather,’ home. Defendant testified that he lived at 1236 South Albany avenue; that on the evening of July 29 he repaired to Katz's tavern about a mile north of his residence; that Levine borrowed his car, as recounted; that during the six or seven hours Levine was away he remained in the tavern drinking; that upon Levine's return the bartender told Levine to not give him (defendant) the keys to the car and directed Levine to drive him home; that he fell asleep in the car; that he next recollected hearing some shots fired, whereupon he awakened to find police officers drawing alongside his car; that when the shots were fired Levine alighted from the car and ran, and that he opened the door and fell out, adding he was ‘under the weather.’ Defendant denied stealing any tires and, specifically, that the tires found in his car were stolen by him. Likewise, he denied the statements attributed to him of officers Duffy and Anderson. Ownership of a maroon-colored Oldsmobile with white wall tires was admitted.
On rebuttal, a police officer present when defendant was brought into the station testified that he appeared to have been drinking, but that he was not intoxicated and answered questions very intelligently.
A stipulation discloses that defendant is the same person who, under the name of John Ruff, was, on April 17, 1930, sentencedby the criminal court of Cook county to the penitentiary for the crime of robbery.
To obtain a reversal, defendant insists that his arrest and the subsequent search of his person and automobile, without a search warrant, were illegal, and hence, that his motion, made prior to the commencement of the trial, to suppress the evidence relating to tires and other articles taken from his automobile by the police officers should have been sustained. He contends that they had no knowledge of the commission of any crime, and stopped, searched and arrested him merely ‘on suspicion that...
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