People v. Dale

• Court: Illinois Supreme Court
• Writing for the Court: SHAW
• Citation: People v. Dale, 355 Ill. 330, 189 N.E. 269 (Ill. 1934)
• Decision Date: 23 February 1934
• Docket Number: No. 22212.,22212.
• Parties: PEOPLE v. DALE.

355 Ill. 330

189 N.E. 269

PEOPLE

v.DALE.

No. 22212.

Supreme Court of Illinois.

Feb. 23, 1934.

Error to Criminal Court, Cook County; Philip J. Finnegan, Judge.

George Dale was convicted of murder, and he brings error.

Affirmed.

David A. Riskind, Robert E. Cherry, and Lawrence Bloomenthal, all of Chicago, for plaintiff 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 Seyfarth, all of Chicago, of counsel), for the People.

SHAW, Justice.

On August 4, 1933, Gustav Hoeh was shot to death in front of his haberdashery store at 5948 West Division street, Chicago, in connection with an armed daylight robbery of his place of business. For this crime the plaintiff in error, George Dale, otherwise known as George Kennedy, together with Eleanor Jarman and Leo Minnecci, was indicted for murder. The case was tried before a jury in the criminal court of Cook county, resulting in a verdict and sentence of guilty as to all defendants and imposing the death penalty on Dale, who by leave of court sues out this writ of error to review that judgment.

It appears from the record that on the afternoon in question the plaintiff in error, togetherwith his codefendants, Mrs. Jarman and Minnecci, went to the store of the deceased, and after pretending to look at some merchandise the plaintiff in error drew a gun and informed him that it was a holdup. A struggle ensued between Dale and the deceased, Hoeh, with Dale in front of him and Mrs. Jarman at his back. They dragged him to the sidewalk, and there, while he held his arms in the air crying for help, Dale shot him at least twice. The bullets were afterwards found at the scene of the shooting and were identified on the trial as coming from a revolver which was found in the room occupied by Dale and Mrs. Jarman. The deceased had two bullets through his body, one piercing the heart, diaphragm, and stomach, leaving the body at about the level of the ninth rib, and another through the abdomen, piercing the liver and making an exit at about the level of the twelfth rib. In addition to these wounds he had abrasions on his head, indicating that he had been beaten over the head. The defendants in their own behalf told conflicting stories, attempting to make it appear that an argument had started between Dale and Hoeh at the time Dale was shopping for a shirt. Each defendant tried to make his own part in the transaction appear innocent, and Dale tried to exculpate Mrs. Jarman, with whom he was living.

The defense of Dale, who is the only one of the three sentenced to death and the only one suing out this writ of error, was committed to the office of the public defender of Cook county. Two lawyers in that office handled the defense, first Joseph P. Powers, who was in the case until after a jury had been selected and who was then permitted to withdraw on account of the death of his father, then Attorney Frank Ferlic, another member of the public defender's staff, who continued and finished the trial. It is first contended by plaintiff in error that he was not accorded due process of law and that he had not received a fair and impartial trial because he was represented by counsel who was not sufficiently acquainted with his defense,and therefore was not able to, and did not, adequately protect his interests during the course of the trial.

It is, of course, true, as has many times been pointed out in this court, that every defendant, guilty or innocent, has a right to a fair trial, and that this right includes a reasonable opportunity for him to acquaint his counsel with the nature of his defense and an opportunity for the attorney to prepare. People v. Shiffman, 350 Ill. 243, 182 N. E. 760;People v. Bopp, 279 Ill. 184, 116 N. E. 679. It is also true that it is only where the record shows that the trial court has abused its discretion by denying reasonable time for the preparation of the defense that a reviewing court will interfere. People v. Street, 353 Ill. 60, 186 N. E. 534. Before there can be any reversible error on account of a lack of time to prepare for trial, it must appear from the record that time was asked for and that the court's refusal to give it in some way embarrassed the defendant's case or prejudiced his rights. Time to prepare for trial does not include time to concoct a nonexistent defense, but only such time as may be necessary and reasonable for the preparation and presentation of whatever defense the defendant has. The two essential elements for reversal are lacking in this case, in that it does not appear that any further time was asked for, nor does it appear that the defendant had any evidence or theory of defense to be presented to the jury which was not fully and adequately placed before it. There is nothing in the record to show that the case for the people could have been weakened or the case for the defendant in any way strengthened had any further time been asked for and granted. It also appears from the record that the attorneys Powers and Ferlic were both members of the public defender's staff,...