People v. Grizzel

• Decision Date: 21 January 1943
• Docket Number: No. 26974.,26974.
• Citation: 382 Ill. 11,46 N.E.2d 78
• Parties: PEOPLE v. GRIZZEL et al.
• Court: Illinois Supreme Court

382 Ill. 11

46 N.E.2d 78

PEOPLE

v.GRIZZEL et al.

No. 26974.

Supreme Court of Illinois.

Jan. 21, 1943.

Error to Circuit Court, Coles County; George W. Bristow, Judge.

Harley Grizzel and others were convicted of assault with a deadly weapon with intent to commit murder, and they bring error.

Reversed and remanded.Harry I. Hannah and Thomas R. Figenbaum, both of Mattoon, and A. W. Schimmel, of Pittsfield, for plaintiffs in error.

George F. Barrett, Atty. Gen., and W. K. Kidwell, State's Atty., of Mattoon (Kenneth Green, of Mattoon, of counsel), for the People.

THOMPSON, Justice.

Harley Grizzel, Norman Louis Farr, alias Louis Fawr, alias Frank Johnson, alias Frank Wittenbrink, alias Robert Cramer, and Thomas Fagin, alias Tommy Fagan, alias Herman Berlin, alias Herman Berlinda, hereinafter referred to as defendants, were indicted in the circuit court of Coles county, on a charge of assault with a deadly weapon on William Allen, with intent to commit murder.A motion to quash the indictment was filed by the defendants which was overruled by the court, whereupon the defendants entered their respective pleas of ‘not guilty,’ and on May 4, 1942, were placed on trial before a jury, found guilty and sentenced to imprisonment for a period of not less than one or more than fourteen years.Defendants bring the cause here contending that the evidence was insufficient to justify the conviction; that the indictment was invalid and that the State's Attorney committed prejudicial error in his argument to the jury wherein prejudicial remarks were made against the defendants with reference to their failure to testify, and that prejudicial remarks were made concerning the character and appearance of the defendants.

The evidence reveals without dispute that on the night of September 3, 1940, William Allen, who was manager of the Well-Worth Five and Ten Cent Store, located on the north side of the square in Charleston, Coles County, Illinois, after having visited a picture show adjacent thereto, returned around 9:30 P. M. and entered the store; that he walked to the rear of the store and in so doing was surprised by a beam from a flashlight in his face.No other artificial lights were burning in the store at that time.The party holding the flashlight said: ‘Stick 'em up.I got you covered.’Allen, not realizing the seriousness of the situation and thinking some fellow employee was playing a prank on him, said, ‘That's what the rug said to the floor.’Thereupon the person holding the flashlight, with a curse, struck Allen over the head with a blunt instrument, the nature of which is not disclosed, cutting a gash three or four inches in his head, but not rendering him unconscious.Allen asked his assailant for a doctor and was thrown some socks from the counter which he used in wiping the blood from his face.At this time a second confederate tied his feet and he was told to keep his head on the floor or he would be shot.A third confederate on the mezzanine floor called to one of the two on the main floor to open up the basement as they were ready to leave.The trio, before leaving, cursed and insulted Allen and told him not to say anything until they got away or they would return and, if necessary, come to his home and get him.

After his assailants left, Allen went to the mezzanine floor, called the police and located his employer, George W. Benedict.The safe on the mezzanine floor was found to have been broken open and part of the contents scattered about the floor, the money having been taken, as well as other property.There were seventeen bags containing money missing, some of which were later recovered from a wrecked automobile on State Route 130.Allen was unable to identify his assailants, but as they left the store he heard one say, ‘Pete, let's get ready to go.’

The evidence offered by the People necessary to prove the defendants guilty beyond a reasonable doubt, was circumstantial.The defendants offered proof of an alibi.Twenty-one witnesses testified for the People covering a wide range of circumstances offered for the purpose of connecting the defendants with the crime.In reviewing this evidence we find only one witness, Edward A. Huddleston, who attempts to identify the defendants as being at the scene of the wrecked car and his testimony is fraught with many contradictions.He testified he lived on Route 4, Charleston, Illinois, about one mile and a half south of town; that State Route 130 is a concrete road running south from Charleston, about one mile and a half or three-quarters, to a corner where it turns abruptly east; that Pink Sims lived on the northeast corner of the curve; that he lived between a quarter and a half-mile north and to the west of the curve; that between 9:20 and 9:30 P. M., having just arrived at his home, he heard and saw a car coming south on Route 130; that he stood on his porch about two minutes and heard a crash; that he drove immediately to the scene and parked on the left-hand side of the pavement headed northwest about six or eight feet from a car standing there; that his car had fifty-candlepower lights and were on bright; that the car standing there was using dim lights; that no one was in the car standing there.About this time three fellows came out of the bottom where the car was wrecked.They came to the guardrail along the road and to the car parked in front of him in the headlights of his car.One was following the other.The one in the middle was having trouble with his arm and he talked to one of them; that one was short and stocky, one was approximately six feet tall and the other was a slenderbuilt man; that he guessed the six-foot man to weigh 185 to 195; the chubby one at 165 or 170 and the third at 140; that he did not observe the color of the hair of any; that the smaller man asked him how to get to a hospital and that he helped the six-foot fellow and the one around 165 pounds to get in the car; that the 165 pounder got in first and the six-footer last, and the smaller one got under the wheel; that they were there five or ten minutes from the time he drove up until they left.While witness was testifying, he pointed out in the court room, Thomas Fagin, Norman Farr and Harley Grizzel, the defendants, and described them as the three men he saw at the wreck on September 3, 1940, and who drove off in a black Hudson car.Witness further testified he did not know their names at the time he observed them at the scene of the wreck.

His testimony was considerably weakened, due to the fact that in the first instance he identified the defendants through pictures sent to him and that he had never seen these men before and never saw any of them again until eight months later when he saw Fagin before the United States Commissioner in St. Louis, and never saw Farr and Grizzel until September 27, 1941, when they were in the circuit court of Coles county.His testimony was further weakened by his failure to remember as to how he had testified before the United States Commissioner and also by the fact that he was unable to describe a single article of clothing worn by any of the defendants or even to state whether they wore hats or coats at the time he observed the parties at the scene of the wreck.

There can be no question that the three persons observed by him at the scene of the wreck were the same parties who, a short time before, assaulted Allen and robbed the store.Their haste in getting away from their nefarious crime undoubtedly was the cause of their running off the highway and wrecking their car.That they were the same persons is conclusively shown by the fact that the money and other numerous articles taken from the store were found in the wrecked car.If the evidence had shown unquestionably that one of the defendants was the owner of the car and he had been further identified as the person at the scene of the wreck, it could hardly have been questioned he was not one of the parties who participated in the assault, but the evidence as to the ownership of the car and identification of the person is uncertain.It is insisted by the People that Robert Cramer was the owner of the automobile and that Robert Cramer was Norman Farr, but the proof shows that, while the car was sold to Robert Cramer, the automobile dealer making the sale never saw Cramer afterwards, and Cramer never paid the balance due on the conditional-sales contract.In testifying, the automobile dealer stated he had never seen Robert Cramer since the night of December 10, 1939, and made no attempt to identify Norman Farr as being the person to whom he made sale of the automobile.

Maurice Joseph, a witness for the People, testified he lived in New Athens, St. Clair county, Illinois; that he was a furniture and electrical dealer; that during the month of May, 1940, he was a policeman for the State of Illinois, examining for drivers' licenses in Belleville; that he continued as such until April 1, 1941; that he had seen People's exhibit 39 before; that it was a receipt for a driver's license; that the application was in the name of Robert Cramer and witness further stated that it was signed in his presence and that he gave Robert Cramer a test on that day; that he was driving a Mercury, bluish black; that he gave his address as a post-office box, Edgmont.At this point the witness, after having had an opportunity of seeing Robert Cramer and after having given Robert Cramer a driver's test, made this statement as to identification: ‘I see a man in this court room who has a resemblance to Robert Cramer(pointing to Norman Farr,) but I couldn't say for sure.’

John M. Trendly, a witness for the People, testified that he was an examiner of disputed documents in writing; that he had testified in the State and United States courts and 40 cases in New York, New Jersey, Ohio, Illinois, Tennessee, Nebraska, Colorado, Kansas, Arkansas, Louisiana, and the Republic of Mexico; that he testified in...