People v. Farrell

• Decision Date: 24 June 1932
• Docket Number: No. 20701.,20701.
• Citation: 349 Ill. 129,181 N.E. 703
• Parties: PEOPLE v. FARRELL et al.
• Court: Illinois Supreme Court

349 Ill. 129

181 N.E. 703

PEOPLE

v.FARRELL et al.

No. 20701.

Supreme Court of Illinois.

June 24, 1932.

Error to Circuit Court, Kane County; John K. Newhall, Judge.

Thomas H. Farrell and another were convicted of setting fire to a shop or factory, and they bring error.

Reversed and remanded.Frank A. McCarthy and Theodore N. Schnell, both of Elgin, and Louis Greenberg, of Chicago, for plaintiff in error.

Oscar E. Carlstrom, Atty. Gen., George D. Carbary, State's Atty., of Elgin, James B. Searcy and J. J. Neiger, both of Springfield (Carleton A. Shults, of Aurora, and Marcus J. Sternberg, of Elgin, of counsel), for the People.

DE YOUNG, J.

An indictment, consisting of sixteen counts, was returned in the circuit court of Kane county charging Thomas H. Farrell and Harry Samsky with setting fire to a shop or factory in the city of Elgin, the property of the E. P. Johnson Piano Company, an Illinois corporation. A jury found the defendants guilty, and they were sentenced to the penitentiary. They prosecute this writ of error.

Thomas H. Farrell, sixty-five years of age, resides in the city of Berwyn in Cook county, and is engaged in the business of manufacturing, repairing, and selling pianos. His factory was formerly located in the city of Chicago, but since March 16, 1929, he rented from the E. P. Johnson Piano Company, a domestic corporation, the first and part of the second floor of a frame building on North Grove avenue in the city of Elgin. The building was irregular in shape, one hundred and twenty-one feet long, thirteen feet wide at the north, and eighty-six feet wide at the south end. The owner used part of the second floor for storage purposes. Farrell also conducted a store for the sale of his pianos at 3253 West Madison street, Chicago.

Harry Samsky, forty-nine years old and a resident of the city of Chicago, is engaged in the packing, moving, shipping, and storage business. Upon moving his factory to Elgin, Farrell stored two piano boxes in Samsky's garage. The removal of these boxes had been discussed on more than one occasion, and, pursuant to Farrell's direction, Samsky, on Saturday, May 17, 1930, conveyed them in his motor van to Farrell's factory at Elgin. With an assistant Samsky unloaded the boxes, placed them in the building, and reached Chicago on his return at about 5:30 p. m.

Farrell had arrived at the factory shortly before 3 o'clock, was present when Samsky delivered the piano boxes, and returned, reaching Chicago about 6 o'clock. At 6:30 p. m. an explosion and fire occurred in Farrell's factory which caused considerable damage to the building and the loss of some of the contents. Firemen, who responded to extinguish the fire, found newspapers in the piano boxes, paper strewn on the floor, and bottles containing gasoline in several parts of the building. Farrell went to Elgin on Sunday, the next day, and, accompanied by the heads of the fire and police departments of the city of Elgin, went through the building and saw the piano boxes, bottles, and paper discovered on the evening of the preceding day by the firemen. Shortly afterwards he was arrested and taken to an inquiry conducted by the fire marshal. For the purposes of this review a more detailed statement of the evidence is unnecessary.

[2] A motion was made to quash the indictment, and it is argued that the motion should have been granted because it is charged in every count that the plaintiffs in error set fire to or caused the burning of a shop or factory, that the use of the words ‘shop or factory’ makes the charge in the alternative, and that the indictment is therefore fatally defective. The word ‘or’ in an indictment is a fatal defect only when its use renders the statement of the offense uncertain. Joyce on Indictments (2d Ed.) § 302; State v. Van Doran, 109 N. C. 864, 14 S. E. 32;State of Louisiana v. George, 134 La. 177, 63 So. 866,51 L. R. A. (N. S.) 133. A shop has been defined as a place of manufacture or repair, and a factory is a building or collection of buildings, usually with its equipment or plant, appropriated to the manufacture of goods. Webster's New International Dictionary. The building occupied by Farrell was used for the manufacture and repair of pianos, and it was both a shop and a factory. The charge was not made uncertain by the use of the word ‘or,’ and the court did not err in refusing to quash the indictment.

The further contention is made that the charge in each count of the indictment is that the plaintiffs in error set fire to or burned the shop or factory of the E. P. Johnson Piano Company, an Illinois corporation, that the shop or factory was Farrell's and not the piano company's, and that the proof did not for that reason sustain the charge. The evidence is that the building used by Farrell as his shop or factory was owned by the piano company and leased to Farrell. In an indictment for setting fire to or burning a building occupied at the time, it is sufficient to allege that the building was the property of the owner, lessee, or occupant. Section 19, div. 1, Crim. Code, Cahill's Rev. St. 1929, p. 914, c. 38, par. 31, Smith-Hurd Rev. St. 1929, p. 969, c. 38, § 54; People v. Spira, 264 Ill. 243, 106 N. E. 241;People v. Covitz, 262 Ill. 514, 104 N. E. 887. The evidence was therefore consistent with and supported the indictment.

It is contended that the proof of the legal existence of the E. P. Johnson Piano Company, a corporation, was insufficient. E. P. Johnson testified that the company was a corporation organized under the laws of Illinois; that it owned certain buildings in Elgin and manufactured pianos, and that he was the president of the company. A timely objection would have excluded this testimony upon the ground that it was not competent to establish corporate organization and existence, but no such objection was made, and the question was not urged in the trial court. In the absence of objection, the testimony was sufficient, and it became unnecessary for the prosecution to make more strict proof of the company's corporate existence. People v. Oleszkrivicz, 337 Ill. 342, 169 N. E. 165;People v. Burger, 259 Ill. 284, 102 N. E. 751.

The plaintiff in error Farrell contends that evidence of his statements under oath at an inquiry conducted by the fire marshal the day after the fire was inadmissible because he was, by that proceeding, compelled to give evidence against himself in violation of his constitutional rights. Farrell apparently testified voluntarily under oath at the fire marshal's investigation and his general objection is therefore not available. Objections to the competency of the testimony of the chief of police respecting specific statements made by Farrell at that investigation were also urged. These statements were that Farrell admitted he had been adjudged a bankrupt; that he had been on probation a year for using the name ‘Chickering’ on pianos; that he had experienced much trouble; and that he owed E. P. Johnson six or seven hundred dollars for rent. After testimony of these statements had been given, Farrell's attorney moved that the testimony be stricken because the statements were incompetent and prejudicial. The court granted the motion to the extent that the statements concerned pianos and the indebtedness to Johnson. The ruling did not exclude from the jury's consideration the testimony that Farrell had been admitted to probation for a year. The necessary inference from that testimony was that the order for probation had its basis in Farrell's conviction of some criminal offense. The testimony had no relevancy to, and did not tend to prove, the crime charged in the indictment. It was prejudicial to the plaintiff in error Farrell, and should have been excluded. People v. Gordon, 344 Ill. 422, 176 N. E. 722;People v. Novotny, 305 Ill. 549, 137 N. E. 394;People v. Ahrling, 279 Ill. 70, 116 N. E. 764.

It is contended that the court erred in denying a motion by the attorneys for the plaintiffs in error to withdraw a juror and continue the case because the state's attorney, in the presence of the jury, asked the court to call as its witness a person for whose veracity the state would not vouch. The name of the person was asked, but, before the state's attorney could announce it, counsel for the plaintiff in error Farrell objected to the state presenting the name of any person whose veracity as a witness it would not guarantee. After the name was given in answer to the court's inquiry, one of the attorneys for the plaintiffs in error stated that, before the jury retired, he wished to object because he had subpoenaed the person as a witness, and had notified the prosecuting attorney of his intention to do so. The state's attorney replied that he, too, had subpoenaed the same person. The court, remarking that it did not see why it should call the witness, thereupon denied the motion, and the witness was called on behalf of the defense. A statement that the state will not vouch for the testimony of a witness does not challenge the truth or veracity of the witness. Carle v. People, ...