People v. Catuara

• Decision Date: 13 December 1934
• Docket Number: No. 22515.,22515.
• Citation: 358 Ill. 414,193 N.E. 199
• Parties: PEOPLE v. CATUARA et al.
• Court: Illinois Supreme Court

358 Ill. 414

193 N.E. 199

PEOPLE

v.CATUARA et al.

No. 22515.

Supreme Court of Illinois.

Oct. 24, 1934.

Rehearing Denied Dec. 13, 1934.

Error to Criminal Court, Cook County; Charles P. Molthrop, Judge.

James Catuara and another were convicted of procurement of a dynamite bomb with intent to unlawfully use it for injury and destruction of property, and they bring error.

Judgment affirmed.

Benedict J. Short and Ode L. Rankin, both of Chicago, for plaintiffs in error.

Otto Kerner, Atty. Gen., Thomas J. Courtney, State's Atty., of Chicago, and J. J. Neiger, of Springfield (Edward E. Wilson, J. Albert Woll, and Henry E. Seyfarth, all of Chicago, of counsel), for the People.

STONE, Justice.

Plaintiffs in error, James Catuara and William Palermo, were convicted in the criminal court of Cook county of the statutory crime of procuring a dynamite bomb with the intent that it be used for unlawful injury to, and destruction of, property, and they bring the cause here for review.

The indictment consisted of forty counts. At the close of all the evidence, the state nolle prossed thirty-two counts. The remaining eight counts charged procurement of dynamitewith intent to unlawfully use the same for the injury to, and destruction of, property. Numerous errors are assigned, which will hereinafter be discussed.

The act under which the indictment is laid provides as follows: ‘Any person * * * who shall make, manufacture, compound, buy or sell, or otherwise procure or dispose of, * * * any nitro-chlorate, or other explosive compound, with the intent to use the same, or that the same may be used for unlawful injury to or the unlawful destruction of life or property in any place whatsoever shall be deemed guilty of felony, and upon conviction thereof shall be punished by imprisonment for a term of not less than five years nor more than twenty-five years.’ Smith-Hurd Ann. St. c. 38, § 229, Cahill's Rev. St. 1933, c. 38, par. 207, p. 1011. In general parlance and as well by definitions by lexicographers the word ‘procure’ means ‘to obtain,’ ‘to get.’

The state's evidence on the trial was that on April 18, 1933, at about 10 o'clock in the evening, officers on duty in the city of Chicago were riding in a police car in the vicinity of Morgan and Lake streets, in that city. They noticed an automobile going slowly east on Lake street. The rear light was not burning. The officers changed their course and followed the car, which, after going a block or two, turned in the street and started back. The officers' car blocked the one driven by plaintiffs in error, and, finding the right-hand door locked, the officers ordered the plaintiffs in error to get out of the car. Catuara was in the driver's seat and Palermo was sitting next to him, on the right side of the car. Palermo opened the door, and while getting out tossed a white package along the ground to the back of the car, using an underhand throw. One of the officers, seeing the act of throwing the dynamite away, called to the other officer, saying, ‘I think this is the pineapple.’ The package was picked up by the officers, one of whom asked Catuara what he was doing with the bomb. Catuara replied to the officer, ‘Johnson, can I talk to you?’ Plaintiffs in error were taken to the detective bureau. The state's evidence is that, before Catuara was placed in a cell, he said to Officer Johnson, ‘Let's talk business; cover it up and let's do business,’ and Johnson replied, ‘No, we are going to the cell room.’ Catuara then said, ‘There is a grand in sight.’ The package picked up by the officer proved to be a dynamite bomb consisting of five sticks of dynamite and two pieces of wood bound together with a rope. Near one end was inserted a fuse with a blasting cap. The evidence shows that the fuse would burn through to the dynamite in about one minute and fifty seconds.

Plaintiffs in error were searched at the detective bureau, and there was taken from the person of Catuara certain documents which were introduced in evidence, one of which was a bill of sale to one Joseph Brigante of the car the plaintiffs in error were riding in. There were also a payment book of notes due on the car to the Universal Credit Company and a certified copy of the license application for the car, which showed the applicant to be Joseph Brigante. Brigante testified that he had bought the car on March 7 and had sold it to Catuara about a week and a half thereafter and turned over to him all papers referring to it. He stated that he did not at any time make out an application for a license for the car, and that the application introduced in evidence was not in his handwriting.

The defense was that plaintiffs in error were in the neighborhood where they were apprehended for the purpose of meeting two girls with whom they had an engagement. Palermo denied that he threw anything under the car. He testified that the first he knew of the bomb was from the statements of the police concerning it. Catuara testified to the same. Both he and Palermo denied any conversation with the officer about attempting to settle the matters or giving any money to them. Catuara testified that he bought the automobile from Brigante on a thirty-day tryout, with the privilege of returning it if he did not like it, and took out the license in Brigante's name with the latter's consent, so that, if he turned the car back, there would be no need to change the license. He also stated that his cousin signed the application. Palermo testified that he worked in a pastry shop as an assistant to a baker, and Catuara testified that he was a grocer.

Plaintiffs in error contend, first, that there is no evidence of procurement with the intent specified in the statute; that, assuming they had possession of the bomb (which they both deny), such possession is not evidence of procurement of it, for the reason that procurement with intent is not the same as possession of dynamite with intent. Proof of possession is necessarily proof of procurement, for the reason that the former necessarily includes the latter. If one possess a thing, he has procured it. The charge in the indictment is the procurement of the bomb with intent that it be used for unlawful injury to and unlawful destruction of property. It will be observed that the statute does not make possession of an explosive compound a crime. While proof of possession is proof of procurement, such proof does not show intent, but intent must be shown by other evidence. The nature of the thing found in the possession of the accused, proof of concealment of it, expressions regarding his intent, his actions when apprehended with it in his possession, if there be an attempt on his part to conceal or dispose of the thing, all may constitute evidence of intent to unlawfully use it, and, where the thing possessed is designed and used only for destruction, as dynamite,...