People v. Gambino

• Citation: 145 N.E.2d 42,12 Ill.2d 29
• Decision Date: 20 September 1957
• Docket Number: No. 34253,34253
• Parties: The PEOPLE of the State of Illinois, Defendant in Error, v. Anthony GAMBINO, Plaintiff in Error.
• Court: Illinois Supreme Court

Page 42

145 N.E.2d 42

12 Ill.2d 29

The PEOPLE of the State of Illinois, Defendant in Error, v. Anthony GAMBINO, Plaintiff in Error.

No. 34253.

Supreme Court of Illinois.

Sept. 20, 1957.

Anthory Gambino, pro se.

Latham Castle, Atty. Gen., and Benjamin S. Adamowski, State's Atty., Chicago (Fred G. Leach, Decatur, L. Louis Karton, and John T. Gallagher, Chicago, of counsel), for the People.

DAVIS, Chief Justice.

The defendant, appearing pro se, seeks review of the judgment of the criminal court of Cook County sentencing him, under the Habitual Criminal Act (Ill.Rev.Stat.1953, chap. 38, par. 602), to life imprisonment in the penitentiary after a jury had found him guilty of the crime of armed robbery and that he had theretofore, under the name of Louis Stamos, been convicted of burglary and confined in the penitentiary for that offense.

The defendant contends that the trial court erred in admitting incompetent and prejudicial evidence which established the commission of other crimes for which he was not on trial. The armed robbery for which he was tried occurred on February 25, 1954, and three days later he was arrested and confined in the Cook County jail. His trial began on October 27, 1954, and the People introduced evidence, over objection, that he had participated in an armed escape from the jail on June 28, 1954, while awaiting trial on the armed robbery charge; that he remained at large until August 2, 1954, when he was arrested by Will County officers; and that he attempted to escape from them while being taken to the Joliet jail. Although this evidence showed the commission of other offenses, it was admissible. Upon the trial of an accused, it is competent to prove that he escaped or attempted to escape from custody as a fact raising a presumption of his guilt of the crime charged. People v. Talbe, 321 Ill. 80, 151 N.E. 529; Jamison v. People, 145 Ill. 357, 34 N.E. 486. Defendant also suggested that the court erred in permitting the People to prove that he stole an automobile on August 2, 1954. The record affords on basis for this contention since the only evidence of such theft is testimony that the defendant was rearrested while driving an automobile. However, had the defendant stolen an automobile in order to make good his escape, evidence of such fact would have been admissible. We have held that an accused, who commits an armed assault and steals the vehicle in which he seeks to escape from lawful custody, cannot complain when all the facts and circumstances are brought to light at his trial. People v. Lawson, 331 Ill. 380, 163 N.E. 149; also cf. People v. Talbe, 321 Ill. 80, 90, 151 N.E. 529; Jamison v. People, 145 Ill. 357, 376, 34 N.E. 486.

Objection is made that certain items of personal property allegedly taken in the robbery were received in evidence without establishing that they were at any time in defendant's possession or under his control, and without adequate proof of their ownership. People's exhibits 1 through 5 were a revolver, an automatic pistol, an electric drill, a portable typewriter and a money changer. At the trial, Joseph Lapice, one of the victims of the robbery, positively identified the items as those taken in the robbery of the service station which was owned and operated by his brother, his son, and himself, as partners. Lapice further testified that the items were the property of the partnership and identified the defendant as one of two men who, at gunpoint, had taken them. He identified People's exhibit 6, his wallet containing his son's picture, and testified that the defendant forced him to get the wallet from his street clothes, which were in a locker, and deliver it to him. His testimony was fully corroborated in all particulars by an employee who was with him in the service station at the time of the robbery. This testimony clearly proved the ownership of the property and established the defendant's wrongful possession. In addition, the police officer who arrested the defendant testified that he had recovered the revolver, the drill, the money changer and the wallet from an apartment occupied by a woman who told him that the defendant had given her the key to the rooms a few hours before. When arrested on the street in front of the apartment the defendant told the officer that he lived 'right there.' This testimony, which connected the defendant with the premises where the property was found, was elicited for the most part on cross-examination and the defendant did not claim that it was improperly received.

He now suggests, however, that the articles were obtained as the result of an illegal search and seizure and should not have been received in evidence against him. At no time, either before or during the trial, did the defendant move to suppress this evidence, claim ownership, or request its return. When no timely motion to suppress the evidence is made, property obtained by an unlawful search and seizure is admissible, if otherwise competent, relevant, and material. People v. Kalpak, 10 Ill.2d 411, 140 N.E.2d 726; People v. Valecek, 404 Ill. 461, 89 N.E.2d 368; People v. Winn, 324 Ill. 428, 155 N.E. 337. Furthermore, since the defendant neither claimed ownership of the property alleged to have been illegally seized, nor requested its return, he cannot complain of its seizure or use in evidence against him. People v. Perry, 1 Ill.2d 482, 116 N.E.2d 360; People v. Edge, 406 Ill. 490, 94 N.E.2d 359; People v. Tabet, 402 Ill. 93, 83 N.E.2d 329.

When the defendant was rearrested on August 2, 1954, the officers took an automatic gun from the cabin occupied by him, which was introduced in evidence at the trial as People's exhibit 8. It is undisputed that the defendant expressly consented to the search at which the gun was found and told the officers that it had been given to him by a friend. He does not contend that the gun was illegally seized but takes the position that it was incompetent and irrelevant and that its admission was prejudicial. The People's witnesses testified that the defendant was armed with a gun at the time of the commission of the robbery. It was competent to show that the defendant, at the time of his arrest, possessed a weapon suitable for the commission of the offense charged, even though no claim was made that he actually used it in committing the particular crime. People v. DePompeis, 410 Ill. 587, 102 N.E.2d 813; People v. Lenhardt, 340 Ill. 538, 173 N.E. 155. The court did not err in permitting the People to prove defendant's possession of the gun, and its addmission, after the necessary foundation had been laid, was proper.

On November 1, 1954, the last day of the trial, defendant's counsel filed a motion asking the court to withdraw a juror and declare a mistrial on the ground that defendant's rights to a fair and impartial trial had been prejudiced by the appearance of certain news items in the public press of the city of Chicago on Saturday and Sunday, October 30 and 31. The court's denial of this motion is assigned as error. The motion alleged that the defendant was mentioned and associated in the articles with Gus Amodeo, a notorious criminal and murderer, for whom a manhunt had been in progress during the trial; that the articles stated that the defendant acted in concert with Amodeo in committing the crimes of escape and burglary; that the defendant was otherwise mentioned so that he was unduly prejudiced and his trial a miscarriage of justice; and that the jurors had access to and read the articles. The supporting affidavit of counsel stated that the minds of the jurors were fixed and determined to a conclusion of the defendant's guilt, but failed to allege that any of the jurors read the articles in question. Six news items clipped from three of the leading daily and Sunday papers were attached to the motion, which pertained to the ambush slaying of Amodeo by the police on October 29. From these articles it appears that Amodeo had been hunted by the police since he escaped from jail on June 28, 1954; that the search was intensified after he allegedly shot and killed a police detective on October 21; that the woman who was to deliver an automobile to Amodeo on the night in question, advised the police of the plan and they were waiting for him when he came to claim the car; and that he was killed when he attempted to flee after he had been ordered to surrender. The defendant is mentioned only casually in two of the articles as the man who escaped from jail with Amodeo. The other accounts contain no reference to the defendant. Neither allusion to the robbery charge for which the defendant was being tried, nor mention that his trial was then in progress, was made in any article. The question presented here is whether the record contains a sufficient showing of prejudice to support the contention that the trial court abused its discretion in denying the motion.

Such motion for a mistrial is ordinarily addressed to the sound discretion of the court. People v. Mangano, 354 Ill. 329, 188 N.E. 475. The question to be determined by the trial judge is whether the jurors, or any of them, have been influenced and prejudiced to such an extent that they would not, or could not, be fair and impartial. While the determination of the issue rests in the sound judicial discretion of the court, its exercise is subject to review and the abuse of that discretion will constitute reversible error. People v. Hryciuk, 5 Ill.2d 176, 125 N.E.2d 61; People v. Murawski, 394 Ill. 236, 68 N.E.2d 272. Before it can be said that the jurors have been influenced and prejudiced by the articles in question to the extent that they cannot be fair and impartial, facts and circumstances must appear from which it is reasonable to infer that one or more of them had read the newspaper accounts. People v. Rogers, 303 Ill. 578, 136 N.E. 470. In deciding the...