People v. Holick

• Decision Date: 20 December 1929
• Docket Number: No. 19727.,19727.
• Citation: 337 Ill. 333,169 N.E. 169
• Court: Illinois Supreme Court
• Parties: PEOPLE v. HOLICK.

337 Ill. 333

169 N.E. 169

PEOPLE

v.HOLICK.

No. 19727.

Supreme Court of Illinois.

Dec. 20, 1929.

Error to Criminal Court, Cook County; Joseph B. David, Judge.

Azark Holick was convicted of murder, and he brings error.

Reversed and remanded.Golan & Hall, of Chicago, for plaintiff in error.

Oscar E. Carlstrom, Atty. Gen., John A. Swanson, State's Atty., of Chicago, and James B. Searcy, of Springfield (Edward E. Wilson and John Holman, both of Chicago, of counsel), for the State.

DIETZ, J.

The plaintiff in error was indicted jointly with Albert Hiblonsky and Hyman Siegal, in the criminal court of Cook county, for the murder of Anthony Banas. He entered a plea of not guilty and was tried separately. The jury returned a verdict finding him guilty and fixing his punishment at life imprisonment in the penitentiary. His motions for a new trial and in arrest of judgment were overruled, and he was sentenced accordingly. The case is brought here for review by writ of error.

On November 27, 1926, the deceased was employed in a butcher shop on Archer avenue, in the city of Chicago, which was owned and operated by Walter Rolinskas. Shortly after 8 o'clock on the evening of that day a stranger entered the butcher shop and sought to make a purchase from the deceased. He was followed immediately by a second stranger with a handkerchief covering his face, who drew a gun and ordered Rolinskas into the ice box. The deceased ran toward the rear of the shop. The first stranger fired two shots in the direction of the deceased. Hurriedly leaving by the front door the strangers made their escape in an automobile. Both shots struck the deceased, resulting in wounds of which he died on the day following. Almost a year later, and on the evening of November 21, 1927, the plaintiff in error was arrested at his home by police officers, who took him to the detective bureau. He was sick at the time and in a weakened condition. Until a week prior thereto he had been in bed for three months, continuously, with a broken jaw and a couple of fractured ribs, from which he was still suffering. Following his arrest he was kept in the custody of police officers and in a cell at the bureau until November 28 following, when he was taken to the county jail. During that time he signed an alleged written confession, in which he implicated Hiblonsky, Siegal, and himself in the commission of the crime. Except for the testimony of Rolinskas and a police officer as to certain verbal admissions of the plaintiff in error, made at the same time, the alleged confession is the only evidence which in any way connects him with the crime.

The plaintiff in error is a laborer, 27 years of age. He lived with his mother, with whom he had always resided, except for a period of 3 years and 3 months following 1917, when he was in the military service. He testified in his own behalf. He said that he did not know Siegal, and that he did not get acquainted with Hiblonsky until long after November 27, 1926, and denied that he had anything to do with the commission of the crime. He testified that he was not in Chicago but in Gary, Ind., on November 25, 26, 27, and 28, 1926, with his mother and sister, visiting at the home of Eva Lamitz and Pauline Lamitz, by all of whom he was corroborated. Hiblonsky and Siegal were called as witnesses on behalf of the plaintiff in error, but each refused to testify on the ground that his testimony might incriminate him.

It is first contended by the plaintiff in error that the court erred in admitting the alleged written confession. It is urged that the evidence does not show that it was made voluntarily. A preliminary hearing on this issue was had before the court. On such issue the burden of proof is upon the prosecution. People v. Frugoli, 334 Ill. 324, 166 N. E. 129;People v. Spranger, 314 Ill. 602, 145 N. E. 706. A witness for the prosecution testified that he was one of the police officers who made the arrest; that the statement which is claimed to be the confession was made and typewritten in his presence and in the presence of four other police officers, a stenographer, and the plaintiff in error, between 3:00 and 4:00 in the morning following the arrest; that it was then read to and signed by the plaintiff in error; that no inducement, threat, or promise was made to procure it; that no one twisted the arms of the plaintiff in error; that witness saw no marks on his person; and that they did not book him until three days after he was arrested. This was all of his testimony and all of the evidence offered by the prosecution.

The plaintiff in error testified that at the time of his arrest he was sick and in a weakened condition; that until a week prior thereto he had been in bed, continuously, for three months with a broken jaw and a couple of fractured ribs, from which he was still suffering; that he told this to the police officers and they told him that they knew it; that he did not sign the alleged confession until the second night after his arrest; that during all of that time he was under the constant surveillance of a number of police officers, who questioned him continuously, except for infrequent half-hour intervals when he was kept in a cell; that he repeatedly professed to them his innocence, and when he did so they said he was a liar; that they told him he would have to make the statement they wanted him to make and that they would force him to do so if it took a year to get it; that he did not make the statement, but that it was made by some one else; that he did not read it, and that it was not read to him; that when he signed it he did not know what it contained; and that they twisted his arms and compelled him to sign it.

No evidence was offered in rebuttal, and there was no specific denial of the facts testified to by the plaintiff in error. It is true that the police officer denied that any inducement, threat, or promise was made to procure the alleged confession, but such denial was in the form of a categorical answer made by him to a leading question volunteered by the court. This was but a conclusion of the witness and not the denial of any specific fact. He also said that no one twisted the arms of the plaintiff in error, but this was also in the form of a like categorical answer to a leading question not confined to any particular time. It does not appear that this witness knew all that had transpired between the time of the arrest and the time the statement was signed. There was therefore no proper foundation for his conclusions. Before the statement was signed the plaintiff in error had been in the custody and under the constant surveillance and questioning of other police officers for more than 10 hours. The testimony of this witness covers only the time of the arrest and the period of about an hour while the statement was made. The remaining 8 or 9 hours are not accounted for. For all that appears, this witness was the one who knew the least about what had taken place. We have repeatedly held that a court is warranted in excluding a confession unless all of the police officers engaged or present at the sweating of the accused are called as witnesses, and that the court has no right to disregard the testimony of the accused showing that a confession was forced by threats and physical violence, without a specific denial of the facts to which he testified. People v. Spranger, supra; People v. Sweeney, 304 Ill. 502, 136 N. E. 687;People v. Rogers, 303 Ill. 578, 136 N. E. 470. The statement itself shows that five police officers and a stenographer were present while the statement was made. Only one of these six persons was called to testify.

The general rule is that unless voluntarily made a confession cannot be admitted in evidence. People v. Spranger, supra; People v. Buckminster, 274 Ill. 435, 113 N. E. 713;People v. Heide, 302 Ill. 624, 135 N. N. 77; Miller v. People, 39 Ill. 457. A confession is not voluntary where any degree of influence amounting to duress is used to obtain it by those having authority over the person of the accused, and a confession so obtained must be excluded, because the law cannot measure the effect of such influence. People v. Heide, supra; Robinson v. People, 159 Ill. 115, 42 N. E. 375;Austine v. People, 51 Ill. 236. If the specific facts testified to by the plaintiff in error are true, the alleged confession was not made voluntarily. In the condition of this record they must be so regarded, since they were not met by any denial. people v. Spranger, supra; People v. Sweeney, supra; People v. Rogers, supra. Our conclusion...