People v. Dowling

• Decision Date: 07 May 1968
• Docket Number: Gen. No. 51805
• Citation: 95 Ill.App.2d 223,238 N.E.2d 131
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Joseph DOWLING, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 131

238 N.E.2d 131

95 Ill.App.2d 223

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Joseph DOWLING, Defendant-Appellant.

Gen. No. 51805.

Appellate Court of Illinois, First District, Second Division.

May 7, 1968.

Gerald W. Getty, Chicago, Norman W. Fishman and James J. Doherty, Chicago, of counsel, for appellant.

John J. Stamos, State's Atty., County of Cook, Chicago, Elmer C. Kissane, Chicago, and Francis J. Carey, of counsel, for appellee.

BURKE, Presiding Justice.

After a jury trial defendant was found guilty of the crime of armed robbery and was sentenced to a term of 25 to 50 years in the penitentiary. He appeals.

The evidence shows that Mr. and Mrs. Abe Artstein, the complaining witnesses, owned a two-flat building on the northwest side of Chicago and occupied the second floor apartment as their residence. The first floor apartment was rented to a doctor. In the early afternoon of February 18, 1966, the Artsteins were in their apartment waiting for the arrival of a taxi cab they had summoned earlier, when the doorbell rang. Mrs. Artstein released the vestibule security door by means of a buzzer in the apartment and proceeded to the front door of the apartment which she opened slightly. She requested the identity of the caller and saw two men, later identified as the defendant and his companion, John Elwell, proceeding up the stairs. They stated they were friends of Mr. Artstein and requested to speak with him. As the men approached the apartment door, Mr. Artstein appeared at the door and both men drew pistols. The Artsteins were forced inside the apartment where they were made to lie on the floor and were bound, Mrs. Artstein with tape and Mr. Artstein with handcuffs. The Artsteins were threatened with harm and were ordered to turn over their money and other valuables to the men. One of the men removed the handcuffs from Mr. Artstein and re-tied his hands with neckties, and the men left. Mrs. Artstein freed herself, the police were summoned and a description of the men given to them.

On March 4, 1966, Mr. and Mrs. Artstein were again in the apartment and were informed by their daughter that two men were in the hallway of the building. A scratching noise was heard at the door and the police were called. A short while later a gunshot was heard and Mrs. Artstein looked out the apartment window to see one of the men, the defendant, being placed under arrest. Mrs. Artstein recognized him as one of the men who had robbed her and her husband two weeks earlier, opened the window and communicated this fact to the arresting officer. The other man, John Elwell, was being carried from the building on a stretcher suffering from a gunshot wound in the head, from which he later died. Pistols were recovered from both defendant and Elwell and both were identified by the Artsteins as the weapons used by the men during the robbery in February. Elwell was wearing a wristwatch taken from Mr. Artstein in the robbery and a handcuff key was recovered from the defendant. Defendant was later again identified by the Artsteins at a police line-up as one of the robbers.

Defendant denied having had anything to do with the robbery of the Artsteins on February 18th, and claimed that the date of his arrest was the first time he was ever at the Artstein building; defendant claimed, but was not allowed to testify, that the reason he went to the Artstein building on March 4th was to procure 'goof balls' from the doctor who lived on the first floor. Defendant also claimed, but again was not permitted to testify, that Elwell, some time prior to his death, informed defendant that Elwell and a man named Abrogotz committed the Artstein robbery.

The investigating police officer, Donald Kenny, testified that he questioned defendant on the date of the arrest concerning the February 18th robbery and that defendant stated, 'I know nothing about a robbery, all you have me for is attempt burglary. I was backing up a man in a burglary.' The officer also questioned defendant about his leg, and defendant informed the officer that he had injured it in an automobile accident; the Artsteins had previously described one of the robbers as walking with a limp. Defendant denied he told anyone his foot was injured in an accident. The officer also testified that footprints in the snow outside the Artstein building found the day of the robbery bore the name 'Stuart Holmes' on the heel, and that shoes found in an apartment allegedly belonging to defendant, two days after his arrest, bore the same inscription on the heels.

Defendant first contends that the State should not have been...