People v. Chivas, 69.

• Decision Date: 04 October 1948
• Docket Number: No. 69.,69.
• Parties: PEOPLE v. CHIVAS.
• Court: Michigan Supreme Court

322 Mich. 384

34 N.W.2d 22

PEOPLE

v.CHIVAS.

No. 69.

Supreme Court of Michigan.

Oct. 4, 1948.

Appeal from Circuit Court, Oakland County; George B. Hartrick, judge.

Sammy Chivas was convicted of armed robbery, and he appeals.

Affirmed.

See also 34 N.W.2d 15.

Before the Entire Bench, except CARR and DETHMERS, JJ.

Edward N. Barnard, of Detroit, for defendant and appellant.

Edmund E. Shepherd, Sol. Gen., of Lansing, H. H. Warner, Asst. Atty. Gen., Clyde D. Underwood, Pros. Atty., of Pontiac, and Lewis R. Bebout, Sp. Asst. Pros. Atty., of Rochester, for appellee.

SHARPE, Justice.

Defendant Sammy Chivas appeals from a sentence entered December 8, 1945, committing him for a minimum of 20 years and a maximum of 40 years upon a conviction of robbery armed.

The information filed August 30, 1945, charges that:

‘Harry Flish, alias Flisher, alias Harry Fisher; Peter Aposteopolos, alias Pete Apostolapos, alias Pete Mahoney; Myron Selik, alias Mike Selik; William Weuburn Davidson, Alias William Bradford, alias William Dunbar, alias Candy; and Sammy Chivas, * * * on or about the 2nd day of December, A.D.1944, did then and there assault one James Dades and did feloniously rob, steal and take from his person and in his presence certain money, to-wit, the sum of two hundred seventy dollars, * * * being then and there armed with certain dangerous weapons, to-wit, pistols and revolvers, in violation of the provisions of Section 529 of Act 328 of the Public Acts of the State of Michigan for the year 1931, * * *.’

The facts deemed necessary to a decision are as follows: James Dates, the assaulteenamed in the information, was the operator of a club known as ‘The Aristocrat Club,’ the membership of which was largely composed of people of Greek ancestry. The club is located in a second floor apartment on South Saginaw street in Pontiac, Michigan. Entrance to the club is gained by means of a stairway from the sidewalk. The outside door of the club rooms has in it a glass which one could see through from the inside, but to a person on the outside, it appeared to be a mirror. Members of the club engaged in gambling with cards.

Dades had been acquainted with defendant Chivas for a period of seven years. Chivas had visited the club six or seven times. Approximately two weeks before December 2, 1944, Chivas, Mahoney, Fleisher and Selik came to Dades' club. They went out to a restaurant about three blocks away for a meal. After they had eaten they held a conference about raising money to get Harry Fleisher's brother Louis out of prison. Dades offered to give $500 and a diamond ring valued at $1,500. His offer was not accepted. During this conference, defendant Chivas sat at a nearby table and not join in the conversation. During the early morning of December 2, 1944, the Aristocrat Club was entered by two men who were carrying pistols and robbed Dades and other members of the club of approximately $800. The record shows that the two men who entered the club were Henry Luks and William W. Davidson, while Sammy Abramowitz remained at the door; that it was planned that the group would go from Detroit to Pontiac in two cars, one car to be driven by Fleisher and the other car to be driven by Mahoney who was to take three guns with him; that defendant Chivas would go to the club and permit the gunmen to enter as he came out.

It also appears that on the morning in question, Chivas with others hereinbefore mentioned met at Mahoney's place in Detroit at about 1 a. m., and later drove over over to O'Larry's Bar and stayed there until about 2:30 a. m.; that Chivas rode out to Pontiac with Luks, Candy Davidson, Fleisher and Selik; and that when they arrived in Pontiac they parked their cars and Chivas went up to the club. He returned to the car in two or three minutes. They then synchronized their watches and arranged with Chivas to come out in five minutes; that after waiting nearly five minutes, Abramowitz went to the Mahoney car and got three guns, after which they proceeded up the stairway to the glass door. Chivas did not immediately come out and they pushed the buzzer; that Abramowitz heard Chivas talking on the inside and saying that he wanted to leave and also heard other members of the club tell Chivas that he could not go out as they did not know the men on the outside.

Having failed to gain admission, Luks, Davidson and Abramowitz decided to abandon the plan and walked down stairs. At this time one Philip Criss, a member of the club, stated he thought he knew the men and started downstairs calling to them. When Criss reached the sidewalk, Luks and Davidson grabbed him hit him over the head with a gun. They then proceeded upstairs. As Criss reached the top of the stairs, the door was opened from the inside and Luks followed Criss into the club rooms, then Luks announced that the place was being held up. Luks ordered the members to face the wall and asked them for the boss. When Dades responded, Luks demanded his money and diamond ring. While this was going on, Davidson was still outside. Abramowitz smashed the mirror door with his gun and then unlocked the door from the inside.

It also appears that Harry Polenis, an ex convict, was one of several who went to the door when the robbers rang the buzzer. He did not open the door because he did not know the men outside, but when Phil Criss came up the stairs, he (Polenis) opened the door and while the robbery was going on Polenis went to a toilet at the other end of the hall and locked himself in. After the robbery, Abramowitz was taken to a hospital and treated for injuries to his arms occasioned by breaking the glass in the door.

It also appears that out of the fruits of the robbery Chivas received $150, Davidson $150 and more than $150 went to Abramowitz, while Luks retained the balance. When the cause came on for trial, Henry Laks and Abramowitz, having been granted immunity, testified in behalf of the people. Polenis also testified in behalf of the people. After the people had rested their case, Chivas' attorney requested an opportunity for further cross examination of the witness Polenis. It developed that the witness had left the State and would be away for a few days. Chivas' attorney declined to make an opening statement until he had an opportunity of further cross examination of the witness Polenis.

In appealing defendant Chivas urges that the court committed error in failing to give the following charge to the jury:

‘The attorney for respondent Chivas has argued a belief that Harry Polenis, one of the People's witnesses, is a possible party to the crime. That is a mere theory on the part of the respondent's attorney and is a legitimate form of argument tending to create a reasonable doubt as to the respondent's own guilt. Respondent is not required to prove Polenis guilty because the burden of proof in a criminal case never shifts to the respondent. If the consideration of this argument and related testimony causes you to feel that Polenis might have been involved in the crime and that if he were involved in the crime that it would then be inconsistent to convict Chivas and this whole consideration leaves you in a position that you cannot say Chivas is guilty beyond a reasonable doubt, then your verdict should be not guilty.’

Defendant urges in connection with the above that it is the duty of the court to instruct the jury on a bona fide theory of defense, when requested. The duty of the trial court in such instances is well stated in People v. Hoefle, 276 Mich. 428, 267 N.W. 644, 645, as follows:

‘It is the duty of a trial court, if proper request is made, to cover in the charge to the jury the theory upon which the defense is founded, if it is supported by competent testimony.’

The testimony shows that Polenis was not acquainted with either Abramowitz, Luks or Davidson; that when these three men ascended the stairs, Polenis, among others, went to the door, but refused to open it as he did not know them; that as Philip Criss came up the stairs, Polenis opened the door to admit him; that after the robbers entered the club, and marched Criss into another room, Polenis rushed to the toilet and locked himself in, nor was he searched by the robber. It also appears that others in the club were not searched. We are unable to find any evidence connecting Polenis with the robbery. The trial court was correct in refusing defendant's request to charge.

It is also urged that the trial court erred in having read to the jury only prejudicial portions of testimony pertaining to a certain point on which the jury requested testimony to be read. It appears that while the jury was deliberating, they submitted a request in writing as follows:

‘Testimony of Peoples Witnesses excepting (Abramowitz and Luks) relative to Chivas leaving Dades place and returning within a few minutes.’

When the jury returned to the court room, the trial court caused to be read portions of the testimony of Dades, Criss and Kocotas.

The specific complaint about the reading of this testimony is that the court did not call in both counsel to obtain suggestions as to what testimony should be...