People v. Botulinski

• Decision Date: 17 January 1946
• Docket Number: No. 29105.,29105.
• Citation: 64 N.E.2d 486,392 Ill. 212
• Parties: PEOPLE v. BOTULINSKI.
• Court: Illinois Supreme Court

392 Ill. 212

64 N.E.2d 486

PEOPLE

v.BOTULINSKI.

No. 29105.

Supreme Court of Illinois.

Nov. 21, 1945.

Rehearing Denied Jan. 17, 1946.

Error to Criminal Court, Cook County; Harold G. Ward, Judge.

Casimer Botulinski and others were convicted of murder, and named defendant brings error.

Affirmed.

GUNN, J., dissenting.

Wm. Scott Stewart, of Chicago, for plaintiff in error.

George F. Barrett, Atty. Gen., and William J. Tuohy, State's Atty., of Chicago (Edward E. Wilson, John T. Gallagher, and Melvin S. Rembe, all of Chicago, of counsel), for the People.

FULTON, Justice.

Plaintiff in error, Casimer Botulinski, together with his codefendants, Arthur Zdobylak and Walter Cropinski, was indicted for the crime of murder by shooting of Paul Weixler, who was a patron in a certain tavern and liquor store located at 7429 Addison street in the city of Chicago, Cook county, Illinois, on February 15, 1944. A plea of not guilty was made by each defendant, and a trial by jury was had in the criminal court of Cook county, and all of the defendants were found guilty. Plaintiff in error received a sentence of 199 years in the penitentiary, as did also Cropinski, and Zdobylak was sentenced to 14 years. Plaintiff in error, alone, has sued out a writ of error from this court to review said judgment.

The murder was committed by Botulinski in the course of a robbery of this tavern, when Weixler interfered in the robbery. The holdup took place about 10 o'clock p.m. Testimony was offered by the State of a robbery by the same defendants fifteen minutes before 10 o'clock p.m. of a tavern located at 5424 Fullerton avenue, which was situated about two or three miles distant from the Addison street tavern, and the robbery was described by three of the State's witnesses, being the owner and two of the customers. The State's evidence also showed that seven or eight minutes after the murder the defendants held up the Midwest Liquor Store located at 3134 North Cicero, which was about two miles distant from the Addision street tavern, and this robbery was described by two customers. All three taverns were within a radius of three miles and were robbed within a period of twenty-three minutes.

The bullet which killed Weixler was shot from a 45-caliber gun carried by Botulinski. The defendants met early in the eveningand mutually agreed ‘to go out and get some money’ and stole a Packard automobile which they used throughout the evening.

All of the defendants testified and admitted their presence in the Addison street tavern and the part each one took in the robbery. All of the defendants, however, denied an intention to kill Weixler and they swore that the 45-caliber revolver used by plaintiff in error was discharged as the result of a scuffle which occurred when Weixler interfered to prevent the robbery and grappled with Zdobylak. All of the State's witnesses who were in this tavern testified that Botulinski deliberately shot Weixler in the chest and killed him when he was facing him and only one or two feet away. On cross-examination, Zdobylak was asked if he had stopped at another tavern on Fullerton avenue before he entered the one on Addison street. Objection was made, which was overruled, and he answered that they did, and afterwards that they went over to the place on Addison street. Then, on cross-examination, Cropinski was asked whether he had stopped at a place on Fullerton avenue first before he went to the liquor store on Addison street. Objection was made by counsel for plaintiff in error, and the court overruled the objection, and he testified that they stopped at a place on Fullerton first and then went to this place on Addison street. He was then asked as to whether they went to a liquor store on Cicero avenue after they left the tavern on Addison street. Objection was made, which was overruled by the court, and he testified they went to a liquor store on Cicero avenue and they went in there, after which they were chased by the police. Botulinski, in his cross-examination, testified, without objection, that they stopped on Fullerton avenue and after they left the place on Fullerton avenue they drove to the tavern on Addison street. Plaintiff in error was then asked as to whether they went over to a place on Cicero. Objection was made by counsel for plaintiff in error, which the court overruled, and the witness stated that they did and they were there a short time and that they were then chased by the police.

All of the defendants confessed to the murder, as well as to the other robberies. However, when they testified, each one claimed his confession was obtained by duress and promises.

It is to be noted that, in the cross-examination of the three defendants, the State's Attorney did not attempt to inquire into the commission of the robberies in the first and last taverns visited.

It was stipulated between the State's Attorney and the attorney for plaintiff in error that plaintiff in error, Botulinski, had been sentenced to the penitentiary for robbery on April 19, 1933, for from one to twenty years, by the criminal court of Cook county.

After the jury was impaneled, the attorney for the defendants made a motion, before the State's opening statement, that the court instruct them at this time to refrain from mentioning anything about the confession of the defendants, but the State's Attorney agreed not to mention it in the opening statement. Counsel next asked the court to instruct the State's Attorney to refrain from mentioning anything about the robbery that took place before the murder in this case, and also the robbery that took place after the murder, and then he made the following statement to the court: ‘Mr. Levy: * * * Now, we have on trial here a murder case. I say to the Court now and I am telling the Court so that there isn't any question about it as far as the record is concerned, as far as the defendants in this case are concerned, they are going to admit that they were present at the time that this alleged robbery took place and were present at the time the deceased was killed, so that there will be no question about identification as far as the defendants are concerned. So it would be not competent to introduce in evidence the robbery before or the robbery after for the purpose of identifying the defendants or showing that they were in the vicinity of the place where the murder took place. This is a capital case and the only purpose that it would have would be to prejudice the defendants' rights before this jury, and under the Mangano case (People v. Mangano, 375 Ill. 72, 30 N.E.2d 428) and the Lane case (People v. Lane, 300 Ill. 422, 133 N.E. 267) which were murder cases, the Supreme Court has said that where that situation arises and there is not any question about the identification or any question about the crime itself, that any other crimes are incompetent. Now, there can be no purpose whatsoever to introduce the robbery before or the robbery after the murder because there is not any question about it in this case. They were identified. Confessions have been made, re-enactments of the murder have taken place. So there can be no question. There are four or five people that will identify the defendants as being present in the place. So there can be no question about any identification or their being in the vicinity of the crime.’

The court aptly stated: ‘There is a plea of not guilty on file. After the State's case, suppose the defendant should not take the stand, or suppose the defendants did not admit anything? The State then would be precluded from proving up their case’; and in reply to Mr. Levy's statement that ‘They are not precluded from proving their case. Their case is complete in this case we have on trial here,’ the court said ‘The Court does not know that,’ and, after the State's Attorney had stated his position, said: ‘The Court does not say at this time that the State should be precluded from proving up its case because of the fact that the defense is going to admit something later on,’ and the court denied defendants' motion.

At the conclusion of the State's opening statement, Mr. Levy made a motion to strike from the record the statements and details of the other offenses other than the murder. The court overruled this motion, and also a motion to withdraw a juror.

In the defendants' opening statement, their counsel said: ‘As far as the actual facts as to the defendants being present at the time of the killing of the deceased in this case and as to Botulinski being responsible for the death of Weixler, there will be no contest as to those facts whatsoever. Circumstances that happened after the arrest, there will be a contest on certain facts which you will hear for yourselves from the witness stand and from the defendants in this case.’ Mr. Levy objected to the testimony of each witness as to the robbery before the murder and the robbery shortly after the murder, and made a motion to strike their testimony and also to withdraw a juror.

At the close of the State's case, the defendants made a motion to direct a verdict of not guilty, which was overruled by the court. The defendants also made a motion to renew their motions to strike the testimony of the witnesses as to the other robbery, both before and after the murder, and renewed their motion to withdraw a juror on account of the incompetent and prejudicial testimony, but the court overruled both motions.

The only question submitted to this court is whether the trial judge should have excluded evidence of the holdups perpetrated in the two taverns, one before the murder and one shortly after the murder.

Counsel for plaintiff in error, in his argument, says: ‘We don't contend here that this incompetent evidence should have been excluded merely because the defense at the outset of the trial informed the court that there was to be no contest of the issues upon which there could be any pretense that the other robberies could be...