People v. Blumenfeld
| Decision Date | 23 December 1932 |
| Docket Number | No. 21559.,21559. |
| Citation | 351 Ill. 87,183 N.E. 815 |
| Parties | PEOPLE v. BLUMENFELD. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Criminal Court, Cook County; James J. Kelly, Judge.
Dave Blumenfeld was convicted of receiving stolen property knowing the same to be stolen, etc., and he brings error.
Affirmed.
James J. McDermott, of Chicago, (Clyde C. Fisher, of Chicago, of counsel), for plaintiff in error.
Oscar E. Carlstrom, Atty. Gen., John A. Swanson, State's Atty., of Chicago, and J. J. Neiger, of Springfield (Edward E. Wilson, and Grenville Beardsley, both of Chicago, of counsel), for the People.
Plaintiff in error, Dave Blumenfeld, was jointly indicted in the criminal court of Cook county with Wilma Harjes, Ernest Levy, Max Levy, and Sadie Weingarten. The indictment contained two counts, the first of which charged the defendants with the larceny of certain articles of jewelry, the personal property of Helen Stern, of a value exceeding $90,000, on August 31, 1931. The second count charged them with the crime of receiving stolen property. The case against Sadie Weingarten was nol prossed by the state's attorney. Wilma Harjes was granted a separate trial and entered a plea of guilty. Ernest and Max Levy were tried jointly with plaintiff in error. At the close of the evidence, the state's attorney nol prossed the second count of the indictment as to Ernest and Max Levy and the first or larceny count as to plaintiff in error. At the close of the trial the jury returned a verdict finding Ernist and Max Levy guilty of larceny and plaintiff in error guilty of receiving stolen property knowing the same to be stolen, etc., and finding the value of the property received by plaintiff in error to be $85,000. Motions for a new trial and in arrest of judgment were overruled, and plaintiff in error was sentenced to the penitentiary on the verdict. He brings the record here on writ of error.
Plaintiff in error presented a written motion to quash the indictment, and assigns the overruling of his motion as error. The motion alleged that the indictment was a nullity, in that there was no competent or legal testimony before the grand jury which found the indictment that would warrant or authorize the finding of the indictment by the grand jury; that the indictment purported to have been found on the testimony of Helen Stern and Leo Carr, whose nanes were the only ones indorsed on the indictment; that they did not testify to any competent, relevant, or material fact, and produced no legal documentary evidence of any kind which would prove, or tend to prove, plaintiff in error had committed the crime alleged in the indictment; that Helen Stern testified before the grand jury that on August 31, 1931, there was in her employ a maid named Wilma Harjes, who had personal knowledge as to where the witness' jewelry was kept for safe-keeping; that during the time witness was away from her home a supposed burglary was alleged to have been committed and the personal articles of jewelry described in the indictment were found to be missing; that she was not personally acquainted with plaintiff in error, nor was she present at any time when Wilma Harjes made any statement or confession in the presence of plaintiff in error, and that she had no personal knowledge that plaintiff in error took part in the crime charged in this case; that Leo Carr, a police officer of the city of Chicago, testified that on November 3, 1931, he arrested plaintiff in error in Gary, Ind.; that plaintiff in error came to the premises of Wilma Harjes in the company of Sadie Weingarten; that before he arrested plaintiff in error he had talked with Wilma Harjes out of the presence of plaintiff in error; that she informed him that plaintiff in error received from her the articles described in the indictment; that at the time he arrested plaintiff in error he searched his person and found none of the articles described in the indictment; that he subsequently took plaintiff in error to the detective bureau in Chicago, where he took a statement from Wilma Harjes in which she stated that she handed the jewelry described in the indictment to plaintiff in error, who was not present at the time the statement was made; that at no time was this statement read to him; that immediately after the arrest Carr asked him as to his connection with the crime; that he denied that he was implicated in the crime or that he had any knowledge that the same had been committed; that Carr had no personal knowledge or information that plaintiff in error was in any manner connected with the crime other than the information he received as a result of the statements made to him by Wilma Harjes. The motion to quash further alleged that none of the grand jurors had any personal information or knowledge concerning the matters or things contained in the indictment, and that neither Wilma Harjes nor any other defendant named in the indictment testified before the grand jury. A written offer of proof was attached to the motion to quash, wherein plaintiff in error requested that the court call as witnesses on the hearing of the motion to quash the witnesses Stern and Carr for the purpose of showing to the court that the testimony offered by them before the grand jury was incompetent, irrelevant, and immaterial, and that the testimony of such witnesses would not prove, or tend to prove, that plaintiff in error was guilty of the crime charged in the indictment, and that their testimony would not prove or tend to prove the corpus delicti of the crimes charged in the indictment. He made no attempt to subpoena the witnesses, and produced no witnesses on the hearing of the motion to quash in support thereof, but went to a hearing on the motion to quash without any evidence, either oral or written, to substantiate the motion and without any request for time in which to produce such witnesses, whose attendance he could have compelled by the process of subpoena. The court did not err in overruling the motion to quash.
Prior to the commencement of the trial, plaintiff in error made a motion for a separate trial, and in support thereof filed his affidavit and that of his attorney, in which it was alleged that Wilma Harjes had made certain false statements of confessions to police officers not in plaintiff in error's presence, in which she implicated him with havingtaken part in the crime; that such false statements and confessions would be admissible in evidence as against her, but incompetent and prejudicial as to him; that she had no funds to employ counsel, and that the court had appointed the public defender to defend her and Max Levy; that she would be a witness in the trial of the cause; and that, because of the representation of the codefendants, Harjes and Levy, by the public defender of Cook county, plaintiff in error's right to a fair and impartial trial would be prejudiced. The court overruled this motion, which action is assigned as error. It is highly important that justice should speedily be meted out and that the criminal should be punished with celerity and dispatch (People v. Blumenfeld, 330 Ill. 474, 161 N. E. 857), yet it is more important that one accused of crime should have a fair and impartial trial. An application for separate trial is addressed to the sound discretion of the court, and is not a matter of right, and, unless that discretion is abused, the discretion of the trial court is not subject to review (People v. Lawson, 331 Ill. 380, 163 N. E. 149), but, where a motion for a separate trial is made on the ground of confessions of other defendants implicating the defendant making the motion, a severance should be ordered, unless the state's attorney...
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