People v. Derrico

• Decision Date: 24 May 1951
• Docket Number: No. 31840,31840
• Parties: PEOPLE v. DERRICO.
• Court: Illinois Supreme Court

Page 607

100 N.E.2d 607

409 Ill. 453

PEOPLE v. DERRICO.

No. 31840.

Supreme Court of Illinois.

May 24, 1951.

Samuel L. Golan and Leonard W. Golan, Chicago, for plaintiff in error.

Ivan A. Elliott, Atty. Gen., and Charles A. Helffrich, State's Atty., Ottawa (John S. Massieon, Ottawa, and Harry L. Pate, Tuscola, of counsel), for the People.

CRAMPTON, Justice.

A grand jury of the October, 1949, term of the circuit court of La Salle County returned an indictment of two counts, charging the defendant, Derrico, with the burglary of the H. Levine Company warehouse in La Salle on the night of Feburary 22, 1949. Each count invoked the provisions of the Habitual Criminal Act, because Derrico had been successfully prosecuted in the Federal court for a felony and had served a sentence therefore in the penitentiary. A jury found him guilty as charged, and he was sentenced to the penitentiary for life. His defense was an alibi.

During the night of February 22, the safe of the Levine Company was removed from its office to the cold storage room in the same building, forcibly opened by the use of burglar tools, and over $900 in money and about $7000 of negotiable bank checks were taken therefrom. This safe weighed several hundred pounds, and two of the four wheels upon which it rested could not turn; so it was apparent that it could not have been moved by one man. On the succeeding day one of the stolen checks was deposited by Charles Hrabina in his account with a bank in Libertyville, Illinois. In April the drawer of the check notified the bank that it was one of the checks stolen from the Levine Company. Hrabina was called upon to make the check good and he did so, explaining that he had cashed the check for a stranger while in a tavern down in the oil fields. Edward Ryan, the sheriff of La Salle County, on being informed of the appearance of this check, visited the bank on June 30. Thereafter, and on the same day, Ryan interviewed Mrs. Hrabina and obtained a warrant against her husband charging him with the burglary. Ryan then advised the sheriff of Richland County at Olney of the warrant for Hrabina and asked that official to locate him, for Ryan would be down the next morning. Ryan knew the make of the car Hrabina was driving and its license number.

The next day (July 1,) while Ryan and his deputy, Murray, were driving south between Newton and Olney, they recognized a car traveling in the opposite direction to be the one they were looking for. They turned, followed the car into Newton, and stopped it. Two men, who were unknown to either Ryan or Murray, were the occupants, and on demand they identified themselves. The driver was Hrabina; the other was the defendant. The two were taken over to the sheriff's office in Newton for questioning and placed under arrest. Hrabina, on the demand of the officers, turned over the keys to his car and they searched it. Two grips, or cases, were found in the trunk of the car. One contained a complete set of burglar tools; these Hrabina admitted belonged to him. The other container held miscellaneous personal effects and a 45-caliber pistol and ammunition therefore. The defendant at first denied ownership of this container and contents but in a few minutes did admit such, including that of the pistol. A loaded revolver belonging to Hrabina was found secreted on top of the glove compartment of the car. Both men denied staging the Levine Company burglary; the defendant has remained steadfast in his denial, while Hrabina did not admit his participation therein until July 5, following a conference with his wife. Hrabina was a witness for the People at the trial of the defendant, and the verdict of guilt rested upon the largely uncorroborated testimony of this accomplice.

Defendant, prior to trial, moved to quash the indictment on the ground no competent evidence was presented to the grand jury. Hrabina did not testify before that body, so he had to rely upon the testimony of the eight witnesses who did testify before it. The trial court would not receive this evidence because it was of the opinion the law did not allow it to weigh such evidence, and, further, it did not want to go into the merits of the case on a preliminary motion. Defendant contends the evidence before the grand jury was incompetent because it did not, in any way, connect him with the burglary. Consequently the guaranties of the State and Federal constitutions, that no person shall be held to answer for an infamous criminal offense except upon the indictment of a grand jury, were denied him. (Ill.Const. sec. 8, art. II, S.H.A.; Fed.Const. fifth amendment.) A motion to quash an indictment will not permit the trial court to inquire into the proceedings before the grand jury for the purpose of determining whether the evidence heard was sufficient to support the indictment unless all of the witnesses before that body were incompetent or all of the testimony on which the indictment was returned was incompetent. People v. Wheeler, 403 Ill. 78, 84 N.E.2d 832; People v. Gould, 345 Ill. 288, 178 N.E. 133; People v. Duncan, 261 Ill. 339, 103 N.E. 1043; People v. Bladek, 259 Ill. 69, 102 N.E. 243. All of the witnesses who appeared before the grand jury were competent, and the evidence which was produced by the testimony of those witnesses was competent. Simply because Hrabina was not a witness before that body, does not raise the presumption that no competent evidence was heard by it. People v. Duncan, 261 Ill. 339, 103 N.E. 1043. Indictments will not be quashed because, according to defendant's theory of the case, those who testified before the grand jury as witnesses to the crime did not, in fact, witness the commission of the offense charged. People v. Price, 371 Ill. 137, 20 N.E.2D 61. An indictment is only a formal charge, and defendant makes the mistake of assuming the necessity of a degree, and quality, of proof before the grand jury nearly akin to that required on trial. The trial court did not err in refusing to weigh the evidence adduced before the grand jury, and the refusal to quash the indictment was not error. The same point was subsequently made by him in his motion for a new trial and was supported by the same argument. The trial court refused to grant a new trial for that reason, and it did not err.

The defendant filed a written petition to suppress certain evidence, i. e., the objects found in his case when it was searched at Newton. The main item stressed was, of course, the 45-caliber pistol. The trial court denied the petition, and the involved items were allowed in evidence. The petition was grounded upon the fact he was arrested without a warrant on July 1, 1949, which was about 4 1/2 months after the burglary, and that neither Ryan nor Murray had reason to suspect the defendant had committed any crime, and thereby the arrest was illegal and the subsequent search and seizure was a violation of sections 2, 6, and 10 of article II of the State constitution and of the fourth and fifth amendments to the Federal constitution. Those sections of article II provide, respectively, against deprivation of life, liberty or property except by due process of law; against unreasonable search or seizure; and against being compelled to incriminate one's self. The fourth and fifth amendments to the Federal constitution are restraints only upon the National government, and not upon the States. Bolln v. Nebraska, 176 U.S. 83, 20 S.Ct. 287, 44 L.Ed. 382; Miller v. Texas, 153 U.S. 535, 14 S.Ct. 874, 38 L.Ed. 812; Hunter v. City of Pittsburgh, 207 U.S. 161, 28 S.Ct. 40, 52 L.Ed. 151.

The arrest of defendant was made without benefit of a warrant. The determination of the point presented rests upon whether Ryan had, at the time of arrest, a belief as to the guilt of defendant such as would influence the conduct of a prudent and cautions man. People v. Duchant, 370 Ill. 650, 19 N.E.2d 590. This belief need not be predicated upon an actual status of guilt. A crime had been committed, and the arresting officer had knowledge of it at the time of arrest. He then knew Hrabina was directly connected with the burglary because of his depositing the stolen check in his bank account. In connection with that deposit, he knew Hrabina's story of how he came into the possession of the check was false because of what the drawer and payee of the check had divulged to the bank, and the record made of the check by Levine Company upon its receipt. An additional known fact to raise the arresting officer's suspicions was that the safe could not have been moved from the office to the cold storage room by the efforts of one man. All of those known facts, when coupled with finding defendant in the company of the suspect Hrabina, both armed, were enough to engender in Ryan, as a prudent and cautious man, a belief that defendant was implicated in the robbery. The facts of the elapse of time and distance from the scene of the robbery, which are argued so strongly by defendant, have no persuasive force. The cases of People v. Ford, 356 Ill. 572, 191 N.E. 315, and People v. Henneman, 373 Ill. 603, 27 N.E.2d 448, cited in support of his point, properly state and apply the law to the facts of each case. Each involved a charge of carrying a concealed weapon, and an unlawful arrest without a warrant. The arresting officer in each case did not have a reasonable belief as to the guilt of the defendant of any crime, such as would influence the conduct of a prudent and cautious man. The trial court did not err in denying the petition.

Error is also charged because the trial court admitted in evidence the items involved in the petition to suppress. One reason is based upon the contention the arrest of defendant was illegal, and the resulting search and seizure were equally so. That reason we have disposed of. It is additionally urged that the items, particularly the pistol, should not have been admitted because of their lack of relevancy to the issue;...