People v. Fuerback
| Decision Date | 14 January 1966 |
| Docket Number | Gen. No. 50358 |
| Citation | 66 Ill.App.2d 452,214 N.E.2d 330 |
| Parties | PEOPLE of the State of Illinois, Defendant in Error, v. Carl J. FUERBACK, Plaintiff in Error. |
| Court | United States Appellate Court of Illinois |
Daniel C. McEachran, Chicago, for plaintiff in error.
Daniel P. Ward, State's Atty., Cook County, Chicago, Elmer C. Kissane and Albert J. Armonda, Asst. State's Attys., of counsel, for defendant in error.
Defendant, Carl J. Fuerback, was convicted of armed robbery after a jury trial and sentenced to the penitentiary for not less than ten nor more than eleven years. Defendant appealed directly to the Illinois Supreme Court which transferred this case to the Appellate Court. In his appeal defendant contends that he did not receive a fair trial, asserting first that the prosecution erroneously, over objection, introduced evidence of the defendant's alleged participation in a crime subsequent to the offense for which he was on trial and, second, that the prosecution's closing argument to the jury was improper.
At approximately 10:50 A.M. on March 15, 1962, defendant and a companion allegedly entered a paint store on Elston Avenue in Chicago, Illinois, and while brandishing a .45 caliber automatic took $45 from the cash register and $23 from one of two off-duty police officers who were customers therein. Defendant was arrested on March 28, 1962, and was subsequently identified in a lineup by the two officers but not by the store owner. Defendant denied committing the robbery and testified that he was with his mother in her apartment at the time of the robbery. This testimony was corroborated by defendant's mother who stated that he did not leave the house until about roon and returned ten minutes later. In rebuttal the prosecution adduced the testimony of Abby Mueller who stated that on March 15, at approximately 11:40 A.M., the defendant and another man entered a grocery store on Wilson Avenue in which she was employed at the check-out counter, that they left and returned at five minutes after twelve and took money from the cash register at gun-point. Upon further direct examination the witness testified in great detail not only as to what the defendant said and did during the robbery but also as to the description of the gun that was used.
The general rule, with certain exceptions not pertinent in this case, is that in the prosecution of a crime evidence of a separate and distinct crime allegedly committed by the defendant is not admissible. People v. Cordes, 391 Ill. 47, 62 N.E.2d 465. In that case the defendant was charged with assault with intent to commit rape but offered an alibi as to his whereabouts at the time of the crime. The prosecution adduced the testimony of a rebuttal witness who stated that in the vicinity and at the approximate time of the crime in question the defendant 'asked her if she wanted to have sexual intercourse and that she observed his trousers were open in front and his private parts exposed.' The court held that the portion of her testimony which tended to show that the defendant was in the vicinity at the time of the crime was admissible to rebut his alibi but that the evidence of the vulgar remarks and his indecent exposure was prejudicial and not admissible. The court stated at page 50, 62 N.E.2d page 467 that:
It is immaterial whether such evidence be considered as tending to establish an offense separate and distinct from the one charged in the indictment or as tending to discredit him and cast suspicion upon his conduct and morals. It was not admissible in either event. It was separate and distinct from the offense charged, unrelated thereto and was not part of the res gestae.
In the instant case the scope of the testimony of Abby Mueller was not limited to rebutting the defendant's alibi that he was at his mother's apartment until noon on the day of the robbery. Though her testimony that the defendant was in the grocery store at approximately 11:40 that morning and again shortly after noon was proper since it did rebut his alibi, the admission into evidence of that portion of the witness' testimony relating the details of the defendant's alleged...
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...feel are guilty. And that's exactly what I'm doing. I've nol-prossed many, many cases. I've dismissed cases"); People v. Fuerback , 66 Ill.App.2d 452, 214 N.E.2d 330, 332 (1966) (finding prejudicial error because the prosecuting attorney, in reply to defendant's closing argument, stated he ......
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