People v. Gurdak, No. 22381.

• Court: Supreme Court of Illinois
• Writing for the Court: DE YOUNG
• Citation: 357 Ill. 516,192 N.E. 554
• Decision Date: 17 October 1934
• Docket Number: No. 22381.
• Parties: PEOPLE v. GURDAK.

357 Ill. 516
192 N.E. 554

PEOPLE
v.
GURDAK.

No. 22381.

Supreme Court of Illinois.

Oct. 17, 1934.

Error to Criminal Court, Cook County; John Prystalski, Judge.

Anthony Gurdak was convicted of robbery while armed with a dangerous weapon, and he brings error.

Reversed and remanded.

[357 Ill. 517]Thaddeus C. Toudor, of Chicago, for plaintiff in error.

Otto Kerner, Atty. Gen., Thomas J. Courtney, State's Atty., of Chicago, and J. J. Veiger, of Springfiled (Edward E. Wilson, J. Albert Woll, and Henry E. Seyfarth, all of Chicago, of counsel), for the People.

DE YOUNG, Justice.

Anthony Gurdak was indicted in the criminal court of Cook county for robbery while armed with a dangerous weapon. He entered the plea of not guilty; a jury found him guilty; a new trial was granted and upon a second trial without a jury he was again found guilty and sentenced to the penitentiary. He prosecutes this writ of error.

The Ross-Jorgensen Company is engaged in the retail dry goods business at 3520 Fullerton avenue in the city of Chicago. The store faces south and two entrances afford access from the street. Counters for the display of merchandise are placed throughout the store and the office is located in the northwest corner. On Saturday, January 21, 1933, about 6:30 o'clock in the evening, while a number [357 Ill. 518]of customers were in the store, a man armed with a revolver took $379.15 from a cash register near the door to the office. At the same time another man stood near the west front door. After the money was taken, both ran from the store.

Two witnesses were called by the prosecution to identify the plaintiff in error. Elsa Off, a sister of Reuben H. Jorgensen, the president of the company, testified that as she walked out of the office at the time in question she saw a man take money from the cash register, while Fannie Jorgensen, the cashier and manager of the store, stood near; that a clerk approached and the stranger pointed a gun at her and exclaimed ‘Somebody get her’; that the witness ran towards the front of the store but stopped when she discovered a man at the west front door with something concealed in his pocket; that she was nervous and excited and observed no peculiar features to distinguish him, and that a week later, at a police station, upon a review of ten or twelve men under arrest, she told the police officers that the plaintiff in error resembled the man who stood at the west door of the store at the time of the robbery; that he was

[192 N.E. 555]

requested to walk to the corner of the room in the police station, and that she then identified him as the same person. On cross-examination it appeared that, with some interruptions, she had been employed in the store during the period of fifteen years, but did not know approximately the number of its employees; that she gave the police officers neither information concerning the height, the complexion, or the apparel, nor any other guide towards the identification of the person at the door; that she saw the plaintiff in error at the police station twice on Saturday, a week after the robbery, but did not remember the time of the day she called at the station; that the first time she saw him she was not certain whether he was the man who stood at the door; that she returned, talked to a police officer whose name and individuality she did not recollect, [357 Ill. 519]saw the plaintiff in error again, and after he put on his hat and walked back, she was positive in her identification; and that she was convinced he was the man who stood at the door because, since the robbery, she had seen him in the court room several times.

The other witness who identified the plaintiff in error was Mary Mosely. She testified that on the particular Saturday evening, there were ten or twelve employees and from fifteen to twenty other persons in the store; that while she attended a customer at a table about twenty feet from the west front door, she noticed a man standing at that door with a gun partially withdrawn from his pocket; that she had never seen him before and did not mention his presence to any other person; that a week later she was taken to a police station by Jorgensen, the president of the company, and viewed seven or eight men under arrest, and after they were directed to put their hats on their heads, she recognized the plaintiff in error, one of their number, as the person who stood at the west front door of the store at the time the robbery was committed.

The plaintiff in error is twenty-one years of age, employed as an upholsterer, and resides with his...