People v. Gormach

• Decision Date: 07 April 1922
• Docket Number: No. 14369.,14369.
• Citation: 302 Ill. 332,134 N.E. 756
• Parties: PEOPLE v. GORMACH et al.
• Court: Illinois Supreme Court

302 Ill. 332

134 N.E. 756

PEOPLE

v.GORMACH et al.

No. 14369.

Supreme Court of Illinois.

Feb. 22, 1922.

Rehearing Denied April 7, 1922.

Error to Criminal Court, Cook County; Frank Johnston, Jr., Judge.

Paul E. Gormach, George Spider and Albert Glenz were convicted of murder, and they bring error.

Affirmed.

Lewis A. Hauschild, of Chicago (Thomas E. Swanson, of Chicago, of counsel), for plaintiffs in error.

Edward J. Brundage, Atty. Gen., Robert E. Crowe, of Chicago, and James B. Searcy, of Springfield (Edward E. Wilson, Clyde C. Fisher, and Henry T. Chace, Jr., all of Chicago, of counsel), for the People.

FARMER, J.

Plaintiffs in error, Paul E. Gormach, George Spider, and Albert Glenz (hereafter referred to as defendants), were convicted in the Criminal Court of Cook county of murder and sentenced to the penitentiary for a term of 30 years. The indictment charged them with murdering Aaron Weinstraub by shooting him with a revolver. When the verdict was returned, defendants made motions in arrest and for a new trial, which the court overruled, and rendered judgment on the verdict.

It is alleged the state failed to prove the man who was shot and killed was the man charged in the indictment to have been murdered by defendants. The homicide occurred in the saloon of Sam Cohen, Henry Friedman, and Max Eisen, at the northeast corner of Potomac and Leavitt streets in Chicago, about 9:20 o'clock in the evening of November 13, 1920. Several men were in the saloon, and some of them were playing cards. Some men entered the saloon and cried, ‘Hands up!’ and a shot was fired, which killed the deceased. The indictment alleged his name was Aaron Weinstraub. The proof showed his name was Aaron Weintraub. Counsel contend that, as the name of the man killed was descriptive of the offense, it was necessary to prove the man killed was the man alleged in the indictment, and that Weinstraub and Weintraub are not idem sonans.

[1][2] The rule is that the name of the person injured by the offense charged must be stated, and a failure to state it, or a material variance between the statement and the proof is fatal, and the application of that rule has resulted in the reversal of many cases by this and other courts. In some of the cases the party alleged to have been injured was not the party proved to have been injured, and in some of them the person injured was alleged to be a corporation, and there was a failure to prove there was any such a corporation. In stating the name of the person alleged to have been injured by the offense charged, a slight variation in orthography in the name proved has sometimes been held fatal, and sometimes not. The rule of idem sonans applies to both civil and criminal proceedings. It is well stated in 14 R. C. L. 207, to be:

‘Where the name as written in the indictment may be pronounced in the same way as the name given in the evidence, although such may not be the strictly correct pronunciation, the variance will not be regarded as fatal, unless the variant orthography be such as would be likely to mislead the defendant in preparing his defense.’

A mere variance in the letters with which the names are spelled is not fatal, if they are pronounced substantially the same.

[3]Defendants insist that there is a marked difference in pronouncing the name ‘Weinstraub’ and ‘Weintraub,’ and that the rule of idem sonans does not apply. This court has held the following names are not idem sonans: ‘Holdberg’ and ‘Goldberg,’ in 287 Ill. 238, 122 N. E. 530; ‘Cierniak’ and ‘Czerionak,’ in 269 Ill. 330, 109 N. E. 1003; ‘Rosalia’ and ‘Rosetta,’ in 258 Ill. 502, 101 N. E. 957; ‘Meyer’ and ‘Meyers,’ in 143 Ill. 634, 32 N. E. 532. In Barnes v. People, 18 Ill. 52, 65 Am. Dec. 699, defendant was indicted for stealing a horse belonging to ‘Dougal McGinnis,’ and the proof showed the horse belonged to ‘Dugald McInnis.’ The court said the names in ordinary enunciation would be indistinguishable, that it would require particular distinctness in enunciation to make the difference apparent and the rule of idem sonans applied. Rivard v. Gardner, 39 Ill. 125, held that, where a bill in chancery named ‘Sinclair’ as defendant, but summons was issued against and served on ‘St. Clair,’ it was a clear case for the application of the rule of idem sonans. In Gross v. Village of Grossdale, 177 Ill. 248, 52 N. E. 372, ‘Frank Bettie’ was appointed a commissioner to estimate the cost of a proposed local improvement. The report was signed ‘Frank Beattie,’ and the court applied the rule of idem sonans. In Lyon v. Kain, 36 Ill. 362, the name ‘Emmonds' was written in the body of a deed as the name of the grantor, but was signed ‘Emmens,’ and the court held the names were idem sonans. In People v. Spoor, 235 Ill. 230, 85 N. E. 207,126 Am. St. Rep. 197,14 Ann. Cas. 638, defendant was convicted of bigamy. The indictment alleged the name of the woman he first married was ‘Sarah Staunton.’ The proof showed her name was ‘Sarah Stanton,’ and the trial court instructed the jury that the variance was not material, and this court held that was not error. Guertin v. Mombleau, 144 Ill. 32, 33 N. E. 49, was an ejectment suit, and by a deed in the chain of title the premises were conveyed to ‘Mitchell Allen,’ and a deed signed by ‘Mitchell Allain’ as grantor was held good as idem sonans.

[4] The rule requiring the name of the party injured by the commission of the crime charged to be alleged in the indictment is for the protection of the defendant in preparing and making his defense. In People v. Weisman, 296 Ill. 156, 129 N. E. 689, defendant was charged with burglary and larceny from a bank. The name of the bank alleged in the indictment was ‘First National Bank of Marissa, Illinois.’ Witnesses for the people referred to it as ‘First National Bank of Marissa,’ which was, in fact, its corporate name. It was urged in this court that there was a variance between the indictment and proof in that respect. The court said:

‘The modern rule is that a variance as to names alleged in an indictment and proved by the evidence is not to be regarded as material, unless it shall be made to appear to the court that the jury were misled by it, or that some substantial injury was done to the accused thereby, such as that by reason thereof he was unable to intellingently make his defense, or was exposed to the danger of a second trial on the same charge. 1 Wharton on Crim. Evidence, 288; State v. Long, 278 Mo. 379, 213 S. W. 436. There is no possible theory upon which it can be said that plaintiff in error has been materially injured upon the trial by reason of the alleged variance, or that he will be prejudiced hereafter by the danger of having again to answer this charge.’

What was there said is applicable here. There was but one man killed in the saloon the night of November 13. That man, though his name was misspelled in the indictment as ‘Weinstraub,’ was the man killed by the men, or one of them, who came into the saloon about 9:20 p. m., commanded those present to hold their hands up, and fired the shot which killed Weintraub. The difference in the sound made by pronouncing the names ‘Weinstraub’ and ‘Weintraub’ is not great, unless particular distinctness is used in enunciation. Defendants were in no way prejudiced in making their defense, nor are they in any danger of hereafter having to answer the charge of murdering Weintraub. Applying the modern rule as stated in People v. Weisman, supra, there was no materialvariance between the indictment and proof, necessitating a reversal of the judgment.

It is further contended the evidence was not sufficient to sustain the verdict. It is insisted the proof that it was defendants who attempted to hold up the saloon, or the crowd in it, it is of itself too uncertain to sustain the conviction, and that that proof was discredited by defendants' proof of alibi. Defendants were not known to any of the persons in the saloon before the homicide. The saloon was owned and the business carried on by Cohen, Friedman, and Eisen. Friedman testified he was in charge of the business November 13 until about 10 minutes before 9 p. m. Defendant Glenz and another man came in the saloon a few minutes before he went off duty. Glenz stepped up to the bar and called for beer, which he drank and paid witness a half dollar. The man who came in with Glenz went back to the toilet in the rear. After Glenz drank his beer, he and the other man went out of the saloon, and the witness left before the shooting took place. Some one told him his place had been held up, and he went back and found Weintraub lying on the floor. He testified he had never seen Glenz before he came in the saloon and bought the beer, but testified he identified the man who bought the beer as defendant Glenz.

Ike Flangel was in the saloon when the shooting occurred. He testified two men came in the saloon and commanded, ‘Hands up!’ three or four times, and then fired a shot. He said defendant Spider was one of the men; that he was about 3 feet from him; that Spider had a gun in his hand, and also had a small leather bag; and that after the shot was fired the men left the saloon. He was shown a leather bag, and at first said it was the one Spider had in the saloon, but later said he could not be certain about it. He had never seen Spider before, but testified he was the man he saw in the saloon with a gun, commanding those present to hold up their hands. Sam Cohen testified he was in the saloon when Weintraub was shot. Defendant Spider was the first man who came in with a gun. He also had a bag on his arm, and said, ‘Hands up!’ and fired a shot. He said Spider had a gun in each hand. Two men rushed into the saloon, and another was swinging the door back; but he could not see him. The witness had never seen Spider before, but he testified he recognized him as the man he saw in the saloon with the guns. He also testified a leather bag shown him looked like the one he saw...