People v. Mizzano
| Citation | 196 N.E. 439,360 Ill. 446 |
| Decision Date | 11 June 1935 |
| Docket Number | No. 22907.,22907. |
| Parties | PEOPLE v. MIZZANO et al. |
| Court | Supreme Court of Illinois |
OPINION TEXT STARTS HERE
Error to Criminal Court, Cook County; Hugo M. Friend, Judge.
Henry Mizzano and others were convicted of burglary, and they bring error.
Affirmed.
Charles A. Bellows, of Chicago, for plaintiffs in error.
Otto Kerner Atty. Gen., Thomas J. Courtney, State's Atty., of Chicago, and J. J. Neiger, of Springfield (Edward E. Wilson, Henry E. Seyfarth, and John T. Gallagher, all of Chicago, of counsel), for the People.
Plaintiffs in error were found guilty in the criminal court of Cook county of the crime of burglary. On August 6, 1934, the store of the Commonwealth Edison Company on Irving Park boulevard was entered though a skylight. The rear door was unlocked and merchandise worth $2,600, including radios, radio tubes, electric appliances, and the like, was stolen. On August 14, plaintiffs in error were arrested at the residence of plaintiff in error Scallati, and the property taken from the Commonwealth Edison Company store of the value of $2,500 was found in the garage and identified by the manager of that store at the police station on August 15.
Prior to the commencement of the trial, a motion and petition to suppress the evidence of the goods seized by the police was filed, alleging that Philip Scallati lived at 4241 Lawndale avenue, in the city of Chicago, and that certain police officers illegally entered his house and garage and took his property, that they did not have a search warrant, and that there did not exist any probable cause or reasonable ground for a belief that petitioner had committed any crime. The petition also set out that the petitioner was informed that the state's attorney intended to use the evidence in the trial. A hearing on the petition was asked and witnesses were called. Among those called by plaintiffs in error were the police officers who made the arrest. These officers testified on this hearing that they went to those premises on information which they had received that a lot of electrical appliances taken in a burglary could be found there. They received the information through a letter given them by the chief of detectives. Two of them went to the front door. The wife of plaintiff in error Scallati answered the door. Officer Healy told her that they were police officers and that they had information that stolen goods were in her house and in her garage, that she told them to go in and search the house, and that she had received letters and had had police there before. Healy made a search of the house and in it saw three radios. In the garage merchandise worth about $2,500 was found and taken to the police station. This was the property identified by the manager of the Commonwealth Edison Company. Officer Lalowski testified that he drove the squad car with Officers Tauzinsky, McDermott, and Healy, and that, after Healy and Tauzinsky got out to go to the front door, he drove the car around to the rear and he heard noises in the garage; that Officer McDermott knocked several times on the side door of the garage, and that the rear door suddenly opened and the two Mizzanos and Ackerman ran out and he arrestedthem; that one of the Mizzanos asked him for a ‘pass,’ and said, ‘You can have whatever is in there.’ This was the evidence offered by the petitioner on his motion to suppress. The court denied the motion, and properly so. There was no evidence of an unlawful search. While the officers did not have a search warrant, they had been informed that stolen property was to be found in that building and searched the premises with the consent of Mrs. Scallati. This testimony was given by these officers as witnesses for the petitioner. The property seized was not offered in evidence, and no specific objection was made to the introduction of the company's inventory of it. The facts of this case do not bring it within those cases cited by counsel for plaintiffs in error. It was not error to deny the motion to suppress.
On the trial, evidence of the ownership and identification of the articles found by the officers was given and was not disputed. The officers testified on the trial of the cause as they had testified on the petition to suppress the evidence. There was taken from Henry Mizzano, one of plaintiffs in error, a book containing several slips of paper on which were written various items of electrical appliances, with figures indicating price following. Three of the defendants, Henry and Joe Mizzano and George Ackerman, testified in their own behalf. Each denied knowing anything about the merchandise. All denied having been in the garage that day. They testified they went to Scallati's place to figure a cement repair job, and that at the time of their arrest they were in the alley near the garage, to which they had just returned after visiting a school building to see about getting cinders for the repairs. It appears from the testimony of the officers that, while they were in the Scallati residence, Scallati, who had been away, returned and they arrested him. He declared that he had rented the garage to a man named J. Gerko, and that he (Scallati) did not know anything about the stuff in the garage. He at first stated he had not had his car in the garage for about a month, but later said that he had kept his car in the south end of the garage until the previous Saturday. Two former employers of Scallati testified that they had employed him for four and three years, respectively, prior to October, 1933. There was testimony as to Joe Mizzano that he had been ordered by a doctor to be in bed during the month of August. Also evidence of employment of Henry Mizzano.
Plaintiffs in error here assign as error, in addition to the refusal of the court to suppress evidence, instructions of the court to the jury, prejudicial conduct of the state's attorney, and rulings on evidence. It is also contended that the evidence does not support the verdict. In support of the...
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... ... jury, the more important instances being an appeal to the patriotism of the jury to protect the public, references to the purchasers as poor people" and \"suckers,\" statements of personal belief and the appellant's guilt, and incorrect statements of facts not justified by the evidence ... \xC2" ... 501, 511-512; Tuckerman v. United States, 6 Cir., 291 F. 958, 969; Stassi v. United States, 8 Cir., 50 F.2d 526, 532; People v. Mizzano, 360 Ill. 446, 196 N.E. 439 ... It is of course permissible for the district attorney to ask the jury for a conviction. Nichamin ... ...
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