People v. Bogolowski

• Court: Illinois Supreme Court
• Writing for the Court: FARMER
• Citation: People v. Bogolowski, 326 Ill. 253, 157 N.E. 181 (Ill. 1927)
• Decision Date: 22 June 1927
• Docket Number: No. 18064.,18064.
• Parties: PEOPLE v. BOGOLOWSKI.

326 Ill. 253

157 N.E. 181

PEOPLE

v.BOGOLOWSKI.

No. 18064.

Supreme Court of Illinois.

June 22, 1927.

Error to Criminal Court, Cook County; Emanuel Eller, Judge.

Morris Bogolowski was convicted of murder, and he brings error.

Judgment reversed, and defendant discharged.

Thompson, J., dissenting.Edward Maher, of Chicago, for plaintiff in error.

Oscar E. Carlstrom, Atty. Gen., Robert E. Crowe, State's Atty., of Chicago, and Merrill F. Wehmhoff, of Decatur (Henry T. Chace, Jr., and Edward E. Wilson, both of Chicago, of counsel), for the People.

FARMER, J.

Morris Bogolowski was convicted in the criminal court of Cook county for murder and sentenced to 14 years in the penitentiary. He has sued out this writ of error to review the judgment, and will hereafter be referred to as defendant.

The party murdered was Joseph Lanus, an automobile dealer. Following the murder of Lanus, Larry Heffernan, William Cramer, Otto Christensen, and defendant were indicted for the crime. The first three named men, when the case came to trial, entered pleas of not guilty, as did also defendant, who subsequently withdraw the plea, entered a plea of guilty, and testified for the state. Heffernan, Cramer, and Christensen were convicted. Heffernan and Cramer were sentenced to death, and Christensen to life imprisonment. It appears that defendant's plea was not at that trial disposed of. The other defendants sued out a writ of error to this court, and pending the determination of that case by this court the case as to defendant was continued, on his motion, from term to term, until this court filed an opinion on April 14, 1924, reversing the judgment of conviction. People v. Heffernan, 312 Ill. 66, 143 N. E. 411. During all that time defendant was confined in jail. After the reversal of the judgment of conviction of Heffernan, Cramer, and Christensen, the case as to them was again tried. Heffernan and Cramer were convicted and sentenced to life imprisonment, and are now serving the sentence. The indictment as to Christensen was dismissed by the state's attorney, with leave to reinstate, and, as we understand it, he was released from custody, and has sincedied.

November 26, 1924, on motion of the state's attorney, the case as to defendant was stricken, with leave to reinstate, but on the same day the order was vacated, and he was again taken into custody and placed in jail. He entered his motion for leave to withdraw his plea of guilty, and the cause was continued as to him until December 22, 1924, when the motion was overruled and he was sentenced to imprisonment for 14 years. He sued out a writ of error to this court, and the judgment of conviction was reversed in an opinion filed June 18, 1925. People v. Bogolowski, 317 Ill. 460, 148 N. E. 260. After the remandment of the case to the criminal court, the cause was continued from time to time until July, 1926, defendant remaining in jail. When the case came on for trial in July, defendant was represented by the attorney appearing for him in this court. He had previously been represented by I. J. Berkson. Before the trial was entered upon, defendant's counsel moved that the state's attorney enter a nolle, in view of the decision of this court in People v. Bogolowski, supra. On that occasion the people were represented by Assistant State's Attorney Hamilton. Previous to that time William Scott Stewart was the assistant state's attorney representing the people in the prosecution. Hamilton refused to nolle the indictment. Thereupon defendant moved that he be discharged in accordance with the decision referred to. The court denied the motion, and counsel representing defendant moved that leave be given Berkson to withdraw of record from the case, and the leave was granted.

As will hereafter appear, the material testimony for the state on the trial of this case was an alleged confession by defendant, made to Detective Schoemaker in the presence of some other police officers. Schoemaker's testimony was objected to, and a motion made to strike it out, because it had been obtained under promise of leniency. The motion to strike was overruled. Berkson testified that, after defendant's arrest and charge with the crime, he had a talk with William Scott Stewart and Edgar Jonas, assistant state's attorneys, who had charge of the prosecution. Stewart told witness they needed a defendant to testify in the case in order to secure a conviction; that witness' client was the cleanest man, with the cleanest record, had the least to do with the crime in Stewart's opinion, and that he would like to get him to testify. Witness asked Stewart what he wanted him to do. Stewart said he wanted defendant to make a complete confession, go on the stand and testify, and plead guilty, and said, ‘You let your man do that, and he will get out.’ Witness told defendant of the talk, and that, if he would plead guilty, take the stand, and testify, he would get out. The next day defendant made a complete confession to Jonas, one of the assistant state's attorneys. When the original case came to trial, Stewart told witness: ‘Have your man withdraw his plea of not guilty and he can get out.’ Witness then withdrew the plea of not guilty and entered a plea of guilty.

The case went to trial then, and defendant made a full disclosure upon the witness stand of his and the other defendants' connection with the case. Briefly, his testimony, as reported in 312 Ill., was that the parties planned the robbery of Lanus. Defendant and Lanus knew each other, and defendant said he could not take part in robbing him; but he was finally induced to go and act as a guard, and give signals for Heffernan and Cramer to enter the place of business of Lanus to rob him. Christensen drove the men over in his car, and upon a signal drove in front of Lanus's place of business, in order to be near to aid the robbers to escape. Lanus resisted and was killed. Cramer was shot through the arm. Defendant's testimony was the most material evidence for the prosecution on the trial reported in 312 Ill. The parties convicted in that case sued out a writ of error, and Berkson testified he talked to Stewart about how long his client was to remain in jail. Stewart told him the judgment might be reversed and a new trial granted, and that the state needed Berkson's client. He suggested defendant stay in jail until the case was finally disposed of. Month after month he would tell Berkson to go to court and make a motion to continue the case until the next term. He did that for several months, and finally complained to Stewart the case was dragging along and his man was in jail. Stewart would say: ‘Don't worry; just as soon as this case is out your man will be out. He will be out, and we got to wait until this case is disposed of in the Supreme Court.’ After the case was reversed by the Supreme Court, there was a retrial of it several months afterwards. Witness told his client to stay in jail, because the state's attorney told him that he would get out when the case of the other defendants was disposed of. The motions to continue defendant's case were made by witness at the request of the assistant state's attorney.

Stewart, called as a witness for the people, testified that he was formerly assistant state's attorney, and as such participated in the trial of Heffernan, Cramer, and Christensen, at which time defendant testified as a witness; that previous to that trial he talked with Berkson, defendant's attorney, about defendant going on the stand as a witness; that he thought he had stated to the judge presiding that he had not sufficient evidence against the defendants to convict without the testimony of defendant in this case; and that he said something with reference to a reward or immunity to defendant if he would testify. Witness conducted the examination of defendant in this case on that trial. He testified that, if Berkson had the impression that immunity was promised defendant, he was warranted in having that impression. In answer to questions asked by the court, witness said he never talked with Berkson in the presence of defendant, but did talk with him about having defendant testify on the stand against the other defendants; that he needed his testimony to convict the other defendants, and that defendant changed his plea of not guilty in that case to one of guilty. Defendant testified in the same manner he had told about the commission of the crime. Stewart further testified he gave the impression to Berkson that his client was going to be taken care of for his testimony against the other defendants.

The first conviction of defendant was reversed by this court, because the state had induced him to plead guilty and testify against the other defendants by a promise of immunity, which promise had not been kept, and the court should have allowed defendant to withdraw his plea of guilty. The weight of the testimony shows that defendant was induced to make his confession to Stewart and Jonas, assistant state's attorneys, and to enter a plea of guilty and testify as a witness for the state against the other defendants indicted with him, by reason of the promise. The state does not really deny that fact, but says two questions are presented for consideration: (1) Whether the state's attorney had the power to grant immunity to defendant for his testimony against his codefendants; and (2) whether, if he had such power, the promise had not been fully complied with in this case.

The confession made by defendant to Jonas and Stewart, which was substantially what he testified to on the trial of his codefendants, was not offered in evidence; but, as we have said, the most material testimony on the trial of this case was the testimony of Detective Schoemaker of the confession defendant made to him. Schoemaker testified that confession was made...