People v. Bros.

• Citation: 180 N.E. 442,347 Ill. 530
• Decision Date: 06 April 1932
• Docket Number: No. 20981.,20981.
• Parties: PEOPLE v. BROTHERS.
• Court: Supreme Court of Illinois

347 Ill. 530

180 N.E. 442

PEOPLE

v.BROTHERS.

No. 20981.

Supreme Court of Illinois.

Feb. 19, 1932.

Rehearing Denied April 6, 1932.

Error to Criminal Court, Cook County; Joseph Sabath, Judge.

Leo V. Brothers was convicted of murder, and he appeals.

Affirmed.

DUNN and DE YOUNG, JJ., dissenting.James C. O'Brien, of Chicago (John Owen, of Chicago, Harry J. Cantwell, of St. Louis, Mo., and James C. O'Brien, Jr., 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.

JONES, J.

Leo V. Brothers, the defendant, was found guilty by a jury in the criminal court of Cook county of the murder of Alfred J. Lingle, and his punishment was fixed at fourteen years in the penitentiary. Motions for a new trial and in arrest of judgment were overruled.

Lingle, a reporter on the Chicago Tribune, was killed on June 9, 1930, at about 1:30 p. m., in a tunnel used by foot passengers under Michigan boulevard, in Chicago, and connecting Randolph street with an Illinois Central Railroad depot. He was shot in the back of the head with a revolver. He fell face down, with both hands in his pockets, a stub of a cigar in his lips and a newspaper under his arm. A number of people were in the tunnel at the time of the killing. The assailant threw the gun down and fled up the steps of the tunnel to the east side of Michigan boulevard, then across the boulevard, zigzagging between automobiles to the north side of Randolph street. He was chased by a police officer named Ruthy and by others, but finally escaped in an alley. The weight of the testimony shows he was dressed in a gray suit, although one witness said it might have been a ‘grayish brown,’ and another testified that it was dark brown. His hair was light in color. As he fled up the steps of the tunnel he held his straw hat in his hand and remained bareheaded while he ran across Michigan boulevard. It was proved by a ballistic expert that the bullet which killed Lingle was fired from the revolver thrown down in the tunnel. The serial number on the revolver had been obliterated, but was restored by a process of etching. The evidence showed it had been previously purchased from a dealer by Frankie Foster.

The principal controversy relates to the identification of defendant as the man who shot Lingle and fled from the scene of the crime. Various witnesses positively identified defendant as being in the tunnel and as the man who dropped the gun and ran up the stairs and across the street. Other witnesses testified with equal positiveness that they were present and that defendant was not that man. Defendant did not testify in his own behalf, and no effort was made to establish his whereabouts on the day of the killing.

Otto Swoboda testified that on June 9 he was in the public library at the noon hour, and, after reading a newspaper, went out and saw a man, whom he later learned was Frankie Foster, leaning against the wall on the north side of the library, and another man, wearing a gray suit and a straw hat, standing near by. Swoboda decided to cross the street and go to Grant Park. He entered the tunnel from the west side of the street, and, after descending the steps, a man rushed past him and in doing so bumped against the witness, knocking out of his mouth a lighted cigarette. The man turned around, and Swoboda observed two moles on his cheek. The man was wearing a gray suit and a straw hat. Swoboda proceeded to the stairway leading up from the tunnel on the east side of the street. He had gone up three or four steps when he heard a shot. He turned around and started down the steps, when the man who had knocked the cigarette out of his mouth rushed by him with his hat in his hand, going up the steps. Swoboda retraced his own steps and saw a man's body on the floor of the tunnel. He turned and ran up the stairway, yelling, ‘Catch him!’ When he reached the street level he saw the fleeing man stop, look around, and then run zigzagging across the street. Upon the trial Swoboda identified defendant as the man who knocked a cigarette out of his mouth and fled immediately after the shot was fired. He directed attention to the two moles he had observed on the man at the time of the killing.

Patrick Campbell, Warren Williams, Daniel Davidson Mills, and Marcus David each positively identified defendant as the man who fled from the tunnel across Michigan boulevard. Williams testified the man passed within a foot and a half of him.

Clark Louis Applegate, a trainer of race horses, in company with his wife, was in the tunnel at the time of the shooting and knew Lingle in his lifetime. He testified he heard a shot, saw a man throw down a gun and come up the steps, looking bewildered; that the man was white as a sheet and ran away, pursued by an officer. He identified defendant as the man he saw. Mrs. Applegate was in Chicago at the time of the trial, but was not called to testify.

John J. Reynolds, a priest, was a teacher at Notre Dame University. He testified he arrived in Chicago from South Bend, Ind., over the South Shore railroad and got off the train at the station at the foot of Randolph street. In going through the tunnel he had almost reached the stairs on the west side, when he heard a shot behind him and turned around. He saw a number of men running up the east stairway, but he ran to and ascended the stairway on the west side and proceeded to the edge of the walk. He heard a voice crying out, ‘Stop that man! Stop that man!’ and saw in the street between the safety island and the curb a blond young chap with a gray suit and blond hair making his way rapidly to the curb. He testified: ‘I followed him with my eyes and then he paused directly across the street from me.’ The witness fixed this distance at sixty feet, and said he stayed there watching the man run up the street, chased by a policeman. The man turned and ran up an alley. The witness was asked the question, ‘Do you see any one in the court room now that you saw that day?’ The answer was, ‘Mr. Brothers answers the description.’ Later he was asked when he next saw defendant, and stated, ‘I saw him at the Congress Hotel.’

Albert W. Kelfstrom had been a salesman in the Taylor Trunk Works, 28 East Randolph street, for ten years. This building is located between Randolph street and the alley through which Officer Ruthy chased the man. Kelfstrom testified that on June 9, 1930, at about 1:35 p. m., he was preparing to go to lunch, and had gone into a small room in the store for his hat. As he stepped out of the room he noticed a man near a side entrance of the store. This entrance was not used by customers. It led into the store from a hallway of an office building. The main entrances to the office building and to the trunk store were on Randolph street. The witness described the man as being very pale, and, when asked if he wanted anything, pointed to a lady's suitcase and asked the price. It was $5, and the man said, ‘I will take it,’ without making any examination of the suitcase. While he was buying the suitcase he was standing near a post and could not be seen from the street. He was asked by the salesman whether he desired to take the suitcase with him, and replied, ‘What time do you close the store?’ The witness said, ‘At five-thirty.’ The man answered that he would be back about 4 o'clock. He gave his name as Doherty, without stating any initials. He paid for the case and walked toward the front entrance of the store, where he looked from one side to another through the doors. Then he turned around and came back to the salesman and asked if there was a washroom, and the witness told him, ‘Yes, come along with me and I will show you where it is.’ The washroom is located just two or three feet from the side entrance to the store and is lighted by electricity. The salesman turned on the light and walked out of the room. After waiting for some time for the man to return, he became curious and went to the washroom. The man was not there, and had evidently come out and left through the side entrance unobserved. The witness found in the toilet a small, square piece of white paper with folds in it. The man never returnedfor the suitcase. He wore a gray suit and a straw hat, and the witness was definite in his identification of defendant as the purchaser of the suitcase.

For the purpose of showing interest of two witnesses, it was disclosed on cross-examination that Swoboda had been paid small amounts of money, ranging from two to twenty-five dollars, by employees of the state's attorney's office for time spent in viewing persons in different states suspected of this crime, and that the witness Williams had been employed since June 15 by the state's attorney as an investigator, at $200 a month.

On behalf of the defendant, Vincent Veitch was called and testified that he was passing the Taylor trunk store on the day of the murder about a quarter to 1 o'clock in the afternoon and saw a Gladstone bag in the window marked $10; that he walked in to purchase it, but learned that the price tag was not on that bag but on a lady's purse; that he could not describe the man who waited on him, except that he had an effeminate way of speaking; and that he was in the store thirty-five or forty minutes and left the store abruptly, ‘maybe rudely,’ as it was necessary to keep an appointment.

Lawrence J. O'Malley, a railroad switchman, testified that he was in the tunnel at the time Lingle was shot; that he saw the man who did the shooting and was within six feet of him at the time, and that Brothers was not the man; that the man who fired the shot had on a gray suit and a straw hat; that he did not report what he saw and made no effort to lend aid to the law-enforcing officers of the city because he was making big money and feared his home would be...