People v. Fiorita

• Decision Date: 04 April 1930
• Docket Number: No. 19996.,19996.
• Citation: 170 N.E. 690,339 Ill. 78
• Parties: PEOPLE v. FIORITA.
• Court: Illinois Supreme Court

339 Ill. 78

170 N.E. 690

PEOPLE

v.FIORITA.

No. 19996.

Supreme Court of Illinois.

Feb. 21, 1930.

As Modified on Denial of Rehearing April 4, 1930.

Error to Circuit Court, Madison County; Jesse R. Brown, Judge.

Carl Fiorita was convicted of murder, and he brings error.

Reversed and remanded.Keefe, Bandy & Listeman, of East St. Louis, for plaintiff in error.

Oscar E. Carlstrom, Atty. Gen., and Alvin C. Bohm, State's Atty., of Edwardsville (M. L. Welch, of Edwardsville, and Emory, J. Smith, of Chicago, of counsel), for the People.

SAMUELL, J.

March 16, 1928, Elmer Baltz, cashier of the First National Bank at Madison, Ill., was shot and killed by robbers while conveying a package of money from the Madison post office to the bank. Elmer Etzel and plaintiff in error, Carl Fiorita, were jointly indicted by the grand jury at the May term, 1928, of the circuit court of Madison county. The defendants were tried and found guilty at the October term, 1928, and sentenced to serve a term of fifty years in the Southern Illinois Penitentiary. Plaintiff in error, Fiorita, prosecutes this writ of error to review that judgment.

Madison avenue in Madison runs north and south. The bank is near the northwest corner of Fourth street and Madison avenue, facing the latter street. One block south, at the southwest corner of Third and Madison, is Glick's department store, and about onehalf half block further south on Madison avenue, between Third street and Second street, is the post office. About 9:30 on the morning of March 16, 1928, Elmer Baltz, cashier, accompanied by Frank Smith, a private guard for the First National Bank, left the bank in Baltz's automobile and drove south on Madison avenue for the purpose of obtaining a registered package of money shipped to the bank by the Federal Reserve Bank of St. Louis. Their car was parked at the curb on the west side of Madison avenue, directly in front of the post office, and both got out and went into the post office. At 10 o'clock the postmaster delivered the package to Baltz. Baltz and Smith re-entered the car and proceeded south to the intersection of Madison avenue and Second street, made a U-turn, and proceeded north on the east side of Madison avenue. Baltz was driving. They had traveled about a quarter of a block when four men in a Buick sedan automobile, which had been standing in front of Glick's store, drove diagonally across the street in a southeasterly direction, directly in the path of Baltz's car, compelling the latter to stop. The bumpers of the cars clashed. The evidence is not clear as to whether one man or two or three or four men got out of the Buick car. Revolvers were drawn. Baltz stepped out of the left side of his car, raised his hands, and cried, ‘Don't shoot!’ Thereupon Smith fired, and then a fusillade of shots came from the robbers' guns. Baltz was fatally wounded, and Smith, who was badly injured, ran up an alley. The robbers' car was driven north on Madison avenue and disappeared. About five weeks later, on April 23, plaintiff in error was arrested in room 7 on the second floor of the Fairmont Hotel, in Collinsville, about ten or eleven miles distant from Madison. Joe Nessor was with him. A .38-caliber Colt revolver loaded with six cartridges was found in the dresser drawer in the room. Nessor had engagedthe room and registered as ‘Joe Carco.’ The register shows ‘Ralph Beasley and party’ were registered at the hotel on March 14 and 15 and ‘Ralph Beasley’ on March 16 and 17. Fiorita was generally known among the hotel employees as Ralph Beasley. On April 22 and 23 Fiorita was a guest at the hotel, being there with Nessor, who registered as Joe Carco.

In further support of the people's case the following witnesses testified substantially as follows:

Grace Wining, a saleslady at Glick's store, stood at the entrance of the store on Madison avenue and saw a Buick car parked at the curb on the west side, in front of the store entrance, about 9:30 on the morning of March 16. The car contained four men and was parked there for at least twenty minutes. She glanced at the occupants casually. She saw a car approach from the south and the Buick go diagonally across the street and saw the two cars meet on the east side of Madison avenue. A man in the Buick jumped out and began shooting. After the shooting the Buick car backed and then went north. She testified she thought Fiorita was one of the four men who sat in the automobile in front of Glick's store on that morning, or at least it was somebody who looked like him. She testified that she had never seen him before or after that time until she saw him in the St. Louis police station a day or two later. She was recalled to the witness stand later and testified that after she had talked with the state's attorney she wished to correct a mistake in her testimony; that she never saw Fiorita in the St. Louis police station but had seen him in the Madison police station after his arrest in April. She could not identify Etzel.

Frank Smith, the guard, described the circumstances of the shooting but could not identity plaintiff in error or any of the robbers.

Catherine Leyden, a saleslady at Glick's, saw the Buick sedan parked near the entrance of the store between 9 and 10 o'clock that morning. She testified that it stood there about twenty minutes; that there were four men in the car, all well dressed, with light tannish overcoats and hats to match; that Fiorita looked like one of the men; that she saw the Buick go diagonally across the street; that she saw four men standing in the street with light overcoats on and guns in their hands; and that all were shooting. She testified that she believed one of the four men looked like one of the defendants.

John Mowrey testified that he ahd lived in Madison sixteen years; that he did grading and contract work and that he frequently estimated measurements; that at the time of the shooting he was standing at the end of Glick's store and that the shooting took place directly across the street; that the machines came together about 200 feet south of him; that Madison avenue is about 30 feet wide from curb to curb; that it might be nearer 60 feet wide than 30 feet; that Madison avenue is a wide street and a double street railway track runs down the center, and that on each side of the track there is a space of at least 10 feet, with ample room for two automobiles to pass; that when the automobiles came together three men got out of the Buick and began shooting and he saw Baltz raise his hands, and that they were facing Baltz as they shot; that he recognized Fiorita and Etzel as two of the four men in the Buick; that the whole thing came as a surprise to him and that he stood there in a dazed condition for some little time afterwards; that he did not remember how they were dressed; that he thought the shooting took place in Gibson county but that he really did not know.

Nellie Hood at the time of the robbery was on the west side of Madison avenue, near the post office. She saw the Buick car as it came south and stopped at he east curb. She saw one man get out of the car and shoot Baltz. The other three men stayed in the car. She did not identify Fiorita.

John Vaught was on the west side of Madison street, almost directly across from the scene of the shooting. He saw the cars collide. He described the Buick as a greenish, large car, while other witnesses describe it as blue. He says only one man got out of the Buick and that he had a shotgun, but that man did no shooting. He could not identify any of the robbers. He saw the license plate on the green car, which reminded him of having seen the plate before and also the car; that on March 9 he and a policeman put the license number on a slip of paper, which he identified; that the number on the identified slip was 347958.

Joe Shando, a street cleaner in Madison, testified that on March 9 he saw Fiorita walking on the sidewalk at Third street and Madison avenue, and that a fat fellow was sitting in a green Buick car and that Fiorita got in the car and drove away; that he remembered the license number as being 347958; and that he turned in the number to the police station.

Xavier Berlesman, of Belleville, testified that he owned an Essex car in 1928; that his license plate was stolen from his car the night of February 24, 1928; and that the number of the plate was 347958.

Sheriff Robert Lyons testified that when Fiorita was arrested he said his name was Ed Beasley.

Police Officer Odum testified that it would take thirty or thirty-five minutes to drive from the Fairmont Hotel at Collinsville to Third street and Madison avenue in Madison at the rate of thirty-five miles an hour.

William Liner, a witness for the people, testified that he was the day clerk at the Fairmont Hotel on March 16; that he knew Fiorita and also knew that Fiorita stayed at the hotel on the night of the 15th; that he saw Fiorita and Nessor in the hotel on the morning of the 16th; and that they left the hotel between 10 and 11 o'clock.

Thereupon Thomas M. Lewis was placed on the stand as an expert witness in bullet inspection, commonly known as internal ballistics. He testified that he had been employed by the St. Louis police department since February, 1927; that for a few months preceding the date of the trial he had been the microscopic photographer and bullet examiner for the department; that his work consisted of identifying bullets as having been fired from certain weapons; that the work is done with a twin microscope with a single eyepiece; that he has been a photographer for fifteen or twenty years and at one time ran a shooting gallery and penny arcade; that this was his only experience with firearms until he became connected with the oplice department; that he had never been to or worked in a factory where guns were manufactured; that he thought the factory of the Colt company was at Hartford Conn., but was not sure; that he did not know how...