People v. Halkens

• Decision Date: 21 March 1944
• Docket Number: No. 27520.,27520.
• Parties: PEOPLE v. HALKENS.
• Court: Illinois Supreme Court

386 Ill. 167

53 N.E.2d 923

PEOPLE

v.HALKENS.

No. 27520.

Supreme Court of Illinois.

March 21, 1944.

Error to Criminal Court, Cook County; Julius H. Miner, Judge.

Clarence Halkens was convicted of armed robbery, and he brings error.

Reversed and remanded.James M. Burke, of Chicago, for plaintiff in error.

George F. Barrett, Atty. Gen., and Thomas J. Courtney, State's Atty., of Chicago (Edward E. Wilson, John T. Gallagher, Melvin S. Rembe, and Joseph A. Pope, all of Chicago, of counsel), for the People.

GUNN, Justice.

The defendant, Clarence Halkens, was indicted in the criminal court of Cook county for the crime of armed robbery. The indictment consisted of three counts which are similar except that in the second count there was an additional charge that defendant had previously been convicted of the crime of robbery with a gun. Upon a trial before a jury, the defendant was found guilty and, after motions for a new trial and in arrest of judgment were overruled, he was sentenced to the penitentiary for the term of his natural life. To reverse such judgment of conviction he sues out this writ of error.

A stipulation shows that the defendant was previously, in 1922, indicted, tried beforea jury, found guilty of robbery while armed and sentenced to the Illinois State Penitentiary at Joliet.

The record discloses the following main facts: Stanley Burek was the secretary-treasurer of the Security Benevolent Association, a corporation, and it was his duty once each month to collect dues from each member and deposit them in the bank. On April 2, 1940, he went to 1062 N. Ashland avenue to attend a meeting of the Pulaski Council. The meeting was held in a hall about five feet below the street, and the hall was about 30 feet by 40 feet in size. He got there about 5 p. m. and had three assistant collectors and a police officer within him. About 7:30 or 7:45 he started to leave the hall for the bank with the officer, and just as they arrived a few feet from the stairway that goes to the door, he saw four men walking down the steps, each one with a gun in his hand, and they were told to ‘lay down.’ He testified that four men were there and that one man stood over him and another with a zipper bag went to the collectors and took all the money. He stated there were about 50 to 65 people in the hall at the time of the robbery. Eugene Offerman, the officer attending Burek, stated that when the men entered one had a machine gun and told them it was a stickup and kept him covered and forced him back to the rear of the hall; that he, Offerman, had a gun in a holster on his right side and that the gun was taken from him by the defendant, Clarence Halkens. He said the other three men also had guns and identified the man taking the money from the cashiers as one Hall. He further testified that the man with the machine gun was Richard Smith and the other man was Fred Gurney. He stated that subsequently he examined some photographs at the detective bureau and identified those of Clarence Halkens, Richard Smith and Montgomery Hall. Later on he testified that he was at the detective bureau and identified Clarence Halkens, the defendant, Richard Smith and Montgomery Hall at a showup on a platform; that Burek, Mrs. Burek and John Blazek were also present, but were unable to identify any of the robbers. On the trial Fred Gurney testified for the State and stated that he participated in the robbery; that he had served time in the Minnesota Stata Penitentiary at Stillwater, and that he was in the company of Dick Smith, Montgomery Hall and Clarence Halkens when the robbery was committed. Rudolph J. Friedl testified that he was a police officer and that on July 29, 1940, he and some other officers arrested Clarence Halkens, Arthur McWayne, Richard Smith, Montgomery Hall and Morris Factor. At that time he searched Halkens and took from him the keys to Halkens' car. Halkens told him where the car was parked, and under the front seat he found a brown portfolio with three revolvers in it, all of which were loaded when he found them. These revolvers, over objection, were admitted in evidence. John J. Hanrahan testified that he was a sergeant of police and that he had occasion to talk to Clarence Halkens on the night of July 30, 1940; that Halkens on that occasion denied any participation in the Security Benevolent Association robbery, and on the next day he admitted to Hanrahan that he was in the robbery but that he could not put anything down in writing.

On behalf of the defendant his counsel moved the court to call Montgomery Hall and Morris Factor as court's witnesses, which motion was denied. The defendants then called Montgomery Hall to the stand, but he refused to answer any questions as to material matters concerning the robbery. Morris Factor testified that he knew Clarence Halkens and that on July 29 he had borrowed Halken's car; that Halkens had given him the keys to go and get it; and that he was the one who had put the brief case in the car; that it was the first time that this brief case had been in the car; and that as far as he knew the defendant knew nothing about it; that the three revolvers belonged to the witness. On cross-examination by the State's Attorney he testified that he knew Halkens about six months and Smith about eight years; that they did time together in San Quentin, California, for robbery. The Assistant State's Attorney at that time asked Factor several questions about former convictions, to which objections were made by counsel for defendant and motions to withdraw a juror on the basis that prejudicial evidence had been presented, all of which motions were denied.

Clarence Halkens, the defendant, testified in his own behalf and denied any complicity with the crime charged in the indictment whatever. He denied any knowledge of the portfolio or guns. He also denied making the statements by way of confession attributed to him by sergeant Hanrahan. The defendant Clarence Halkens was indicted together with Montgomery Hall and Richard Smith, but the case against both Hall and Smith was nolle prossed. The defendant claims a number of alleged errors, the most serious in our judgment being that the court admitted, over objection of the defendant, incompetent, immaterial and prejudicial evidence.

The witness Moe Factor was brought to the trial as a witness on behalf of the defendant by a writ of habeas corpus ad testificandum and testified that he was at that time an inmate of the Illinois State Penitentiary; that he had known Halkens about six months and Smith about eight years. He then described how he had borrowed the keys to Halkens' car and placed therein the brief case containing the three revolvers. On cross-examination by the Assistant State's Attorney, Factor was examined as follows:

‘Q. And how long have you known Smith‘ A. I have known Smith about eight years.

‘Q. And as a matter of fact, you and Smith did time together out in San Quentin, California? A. That is correct.

‘Q. And you did time at San Quentin for robbery, is that correct? A. That is right.’

Here counsel for defendant objected and moved to withdraw a juror and continue the case. The objection was overruled. Outside of the presence of the jury he was permitted to state more fully the ground for his objection, which was that the only proper way to prove the record of a prior conviction was by the record itself or by a certified copy thereof. The hearing was then resumed before the jury, and later in the cross-examination by the State, the following occurred:

‘Q. You have pleaded guilty here in the court, did you not? A. Yes sir.

‘Q. To a robbery committed at the Good Humor Ice Cream Company?

‘Mr. Burke: Same objection, if the court please.

‘The Court: Objection overruled.

‘Q. And were you on any other holdups?’

To which question objection was sustained.

It is contended that the cross-examination of the witness Factor, disclosing a previous conviction and sentence to the penitentiary, constituted reversible error, because such fact could be proved only by the introduction of the record or an authenticated copy thereof. Apparently the object of the questions on cross-examination was not only to affect the credibility of the witness, but also to show the character of Smith, whom defendant admitted he had known for twenty-five years, as being that of a convict. Defendant was also asked, under cross-examination, about various names he had gone under in the past, and by what name he was known in the Menard penitentiary.

Without considering at this time the fact that Factor had been brought from the penitentiary to testify, and defendant having testified on direct examination to having been previously convicted and served a term in the penitentiary, it may be well to reexamine the question of the necessity for providing the conviction of a defendant, or a witness in a criminal case, of an infamous crime, for the purpose of affecting his credibility, other than by a record of his conviction or by an authenticated copy thereof.

At common law, and prior to the adoption of the Criminal Code of 1874, neither party to a civil suit, nor a defendant in a criminal prosecution, was permitted to testify. They were not competent witnesses, and did not become so in civil cases until the adoption of the Evidence Act Ill.Rev.Stat.1943, chap. 51, par. 1, nor in criminal cases until the adoption of section 6 of division XIII of the Criminal Code, Ill.Rev.Stat.1943, chap. 38, par. 734. However, at common law in either civil cases or criminal prosecutions any person not a party was disqualified from testifying if he had been convicted of an infamous crime, and proof of such conviction was not offered to affect his credibility, but to destroy his competency as a witness. Greenleaf on Evidence, vol. 1, sec. 347, 16th Ed.; Jones on Evidence, sec. 716; Blackstone, vol. 3, page 370. The conviction of an infamous crime at common law was followed by certain other...