People v. Michaels

• Decision Date: 05 October 1929
• Docket Number: No. 19523.,19523.
• Citation: 335 Ill. 590,167 N.E. 857
• Parties: PEOPLE v. MICHAELS.
• Court: Illinois Supreme Court

335 Ill. 590

167 N.E. 857

PEOPLE

v.MICHAELS.

No. 19523.

Supreme Court of Illinois.

June 19, 1929.

Rehearing Denied Oct. 5, 1929.

Error to Circuit Court, Randolph County; Henry G. Miller, Judge.

James Michaels was convicted of robbery when armed with a deadly weapon, and he brings error.

Affirmed.William Baer, of St. Louis, Mo., J. Fred Gilster, of Chester, and H. J. Bandy, of Granite City, for plaintiff in error.

Oscar E. Carlstrom, Atty. Gen., H. C. Lindauer, State's Atty., of Belleville, and George P. O'Brien, of Litchfield (William H. Schuwerk, of Chester, and John Thomas and James A. Farmer, both of Belleville, of counsel), for the People.

HEARD, J.

Plaintiff in error, James Michaels, was indicted, tried, convicted, and sentenced to the penitentiary, in the circuit court of Randolph county, for the cirme of robbery when armed with a deadly weapon. The record of the cause is now before this court upon writ of error.

About midnight of October 10, 1925, two men entered the freight office of the Illinois Central Railroad Company at East St. Louis, intimidated the employees with a show of revolvers, forcibly opened the safe, and escaped with $2,875.15. Between 1 and 2 a. m. of the same night plaintiff in error was arrested at his home in East St. Louis, where he lived with his wife. On the follwing morning he was viewed by the six employees of the railroad company who had been present at the commission of the robbery. On the trial three of the employees, Joseph Huber, Albert Hall, and Henry Davis, identified plaintiff in error as one of the robbers; two of the employees, Thomas McHugh and Elmer Hill, testified that plaintiff in error was not one of the robbers, while the other employee, John Manion, testified that he did not think he was one of them. Plaintiff in error testified that during the entire evening, until the time of his arrest, he had been at home alone with his wife and that no person other than his wife had been there during that time. The prosecution introduced in evidence an affidavit for a continuance made by plaintiff in error, in which he stated that at the time of the commission of the supposed robbery he was at home, and that Herman Tipton came there about 9:30 p. m. and remained there until 1:30 a. m., and that if Tipton were present in court he would testify to that fact, Tipton was not called as a witness.

[2] Manion was the first witness called by the prosecution. After he had stated that he did not think plaintiff in error was one of the robbers, he was shown a statement made by him before the grand jury and other statements signed by him and was asked to read them, but not aloud, and was asked if these statements did not refresh his recollection. It is claimed by plaintiff in error that a party cannot impeach a witness called by him by proving that the witness has on some other occasion made a statement different from the one he makes in court. The prosecution did not offer in evidence the statements made by the witness, but at the time of their exhibition to the witness the state's attorney, in a colloquy which took place between the court and the counsel for both sides, stated that the testimony of the witness was a surprise to the state; that he was not offering the statements but was showing them to the witness for the purpose of refreshing his recollection. The rule is that, when a witness unexpectedly gives testimony against the party calling him, such party has the right to examine him, and by such examination show that the witness is giving unexpected testimony, and to specifically call the attention of the witness to former statements made by him for the purpose of refreshing his memory or awakening his conscience and cause him to relent and speak the truth if he was lying. If, however, the witness denies the alleged statements, the party calling him must be concluded by his answers, and cannot show, either by the written statements of the witness or by other witnesses, that the witness did, in fact, make those statements, either for the purpose of impeachment or as original evidence of the facts sought to be proved. He may, however, prove by other witnesses the facts sought to be proved by the witness giving such unexpected testimony. People v. O'Gara, 271 Ill. 138, 110 N. E. 828;People v. Lukoszus, 242 Ill. 101, 89 N. E. 749; 1 Greenleaf on Evidence, § 444.

Manion in his testimony stated that on the morning after the robbery, at the police station, he did not state, in the presence of plaintiff in error, that plaintiff in error was the man who committed the robbery. The state was allowed to prove by one of the other witnesses who were present that Manion said, in the presence and hearing of plaintiff in error, ‘He is the man,’ and that plaintiff in error made no reply thereto. It is contended by plaintiff in error that the admission of this evidence was error. Manion in one portion of his testimony stated that he identified plaintiff in error at that time. While Manion denied making the statement that plaintiff in error was the man, the state was not precluded thereby from proving by other witnesses what was said in the presence and hearing of plaintiff in error. In People v. O'Donnell, 315 Ill. 568, 146 N. E. 490, it was held that in a prosecution for robbery the prosecution may prove by witnesses who were present that the party robbed said, ‘That is the man,’ in identifying the robbers when they were brought before him shortly after the commission of the crime, where the party accused did not deny the statement.

The witness Hill, who testified as a witness for defendant and stated that defendant was not one of the men who committed the robbery, on...