People v. Montana

• Decision Date: 11 November 1942
• Docket Number: No. 26660.,26660.
• Citation: 380 Ill. 596,44 N.E.2d 569
• Parties: PEOPLE v. MONTANA.
• Court: Illinois Supreme Court

380 Ill. 596

44 N.E.2d 569

PEOPLE

v.MONTANA.

No. 26660.

Supreme Court of Illinois.

Sept. 25, 1942.

Rehearing Denied Nov. 11, 1942.

Error to Criminal Court, Cook County; John A. Sbarbaro, Judge.

Mauro Montana was convicted of assault with intent to commit murder, and he brings error.

Reversed and remanded, with directions to enter proper sentence.Wm. Scott Stewart, 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, and Melvin S. Rembe, all of Chicago, of counsel), for defendant in error.

STONE, Chief Justice.

Plaintiff in error Mauro Montana was convicted in the criminal court of Cook county on the charge of assault with intent to commit murder and was sentenced to the penitentiary for a term of one to fourteen years. The trial judge, in accordance with the provisions of an act to revise the law in relation to the sentence and commitment of persons convicted of crime, as amended in 1941 (Ill.Rev.Stat.1941, chap. 38, par. 801 et seq.), made a recommendation that the minimum imprisonment be ten years and the maximum fourteen years. Montana was impleaded with four other defendants, none of whom was apprehended. He brings the cause here assigning certain errors on the trial, and contending that the Parole act as amended in 1941 is unconstitutional and void.

It is contended the evidence is not sufficient to support the verdict and that errors were committed in the admission of evidence and in instructions to the jury. It is also complained that the conduct of the prosecutor was prejudicial. The evidence of the State was that Frank Zito, the complaining witness, on July 25, in response to a note left at his home, purported to have been written by the defendant, met the latter that night and together they drove to Laflin street in the city of Chicago, stopping in front of an old house, which was used by defendant and his friends as a club. Montana went into the house and left complaining witness and the driver, one Esposito, in the car. Later Montana returned with two men who complaining witness identified as Iacullo and Greco. Complaining witness testified that he was ordered out of the car and pulled into another car across the street; that these men hit him over the head with guns and knocked him to the floor and then drove away with him; that they drove into a narrow alley and threw him out of the car ‘like a sack of potatoes' and shot him. Zito, the complaining witness, was later found and taken to a hospital. He at first refused to disclose the names of his assailants but when later told he was about to die he said that defendant was one of the group. Montana was arrested and taken to the hospital and identified by Zito.

The defendant denied any complicity in the crime and accounted for the note and meeting by saying that Zito had spoken to him concerning the employment of defendant's brother, a lawyer, in the matter of defending Zito in some federal indictments. He denied that the appointment mentioned in his note was kept or that he had anything to do with Zito.

Principal testimony supplied by the State was that of complaining witness Zito. The defense showed that Zito and also his wife had been supported by the State's Attorney in a hotel pending the trial, whereupon the State's Attorney, over objection of defense counsel, offered proof that Zito's wife was pregnant and had no means of support. The defense contends that Zito is a man unworthy of belief. While there is a direct contradiction as to the defendant's implication in the assault, the jury who heard and saw the witnesses chose to believe the complaining witness and we are unable to say that on this record they erred in so doing.

Numerous errors are assigned as to the introduction and exclusion of evidence. Certain bullets were introduced in evidence over the objection of the defense that the finding of the bullets was not at the approximate time of the shooting as detailed by the State's witness, and that the testimony indicated only one bullet had been fired. The evidence showed three bullets were fired and three were found, one in Zito's body and two at the scene of the shooting. Those at the scene of the shooting were found while officers were searching the premises soon after the shooting. No error appears in this connection.

It is also contended that certain evidence was wrongfully excluded. Police officer McCutcheon, on direct examination, testified to the finding of the bullets. He gave no testimony as to conversation with Zito, concerning that or any other matter. On cross-examination counsel endeavored to bring out from the officer testimony as to certain conversations had with Zito. The court refused to permit this testimony on the ground that it was not proper cross-examination. This was not error. People v. Robertson, 284 Ill. 620, 120 N.E. 539. We see no prejudicial error in permitting the State to show the condition of Zito's wife in explanation of keeping her with her husband pending trial. The fact that she was at the hotel on direction of the State's Attorney was brought out by counsel for the defense on direct examination.

Certain instructions are said to be erroneous. Instruction No. 1 informs the jury as to the presumption of innocence. This instruction has been before this court in previous cases. Certain portions of it are here criticized as minimizing the presumption of innocence and defendant's counsel cite People v. Kopke, 376 Ill. 171, 33 N.E.2d 216, where an instruction containing parts of the language of this instruction was commented on. However, in that case the instruction did not contain the statement that the presumption of innocence obtains throughout the trial. Such is contained in the instruction before us. Plaintiff in error's contention cannot be sustained.

Instruction No. 3 is the usual stock instruction on credibility of witnesses with the additional language: ‘The same tests hereinabove given are to be applied to the testimony given by the defendant. You have no right to disregard the testimony of the defendant simply because he is accused of crime.’ It is contended that this instruction requires the jury to test the credibility of the defendant alone by the circumstances enumerated in the instruction. We are not impressed with this argument but are of the opinion that the instruction was proper. Instruction No. 8 stated the law on alibi as a defense, declaring that the proof must cover the whole of the time so as to render it impossible or highly improbable that defendant could have committed the act. In People v. Gasior, 359 Ill. 517, 195 N.E. 10, the cases theretofore decided by this court on that question were reviewed and it was held, following the decision of People v. Thompson, 321 Ill. 594, 152 N.E. 516, that this instruction was proper when given with instructions as to what quantity of proof is sufficient to establish an alibi. In this case instructions 6 and 7 go into that matter fully. Instruction No. 5 complained of defines the crime of assault with intent to murder and sets forth the statutory penalty. Defendant's counsel urges that it was erroneous to give this instruction because it does not refer to the provisions of the Parole act. This objection is without merit. The Parole act relates to the sentencing, custody and supervision of the criminal after conviction and not the penalty itself, which is fixed by statute.

Plaintiff in error also assigns as error the imposition of sentence under the so-called Parole act as amended in 1941, and the recommendation entered by the court in accordance with sections 2 and 3a of that act.

A great deal of plaintiff in error's brief is devoted to the contention that the Parole act is invalid in toto, and that this court was in error in sustaining it originally, as was done in the following cases: People v. Mikula, 357 Ill. 481, 192 N.E. 546;People v. Dwyer, 324 Ill. 363,155 N.E. 346;People v. Cohen, 307 Ill. 87, 138 N.E. 294;People v. Bernstein, 304 Ill. 351, 136 N.E. 683, and People v. Doras, 290 Ill. 188, 125 N.E. 2. We are not disposed to again review that contention as it has been made and disposed of in numerous cases decided by this court, as indicated in the citations just noted.

The amendment of 1941 is attacked as invalid on the ground that it delegates executive and judicial powers to the Division of Correction, an administrative body. Section 2 was amended by omitting therefrom the former prohibition that the court in imposing a general sentence shall not fix the limit or duration of imprisonment, and providing that the court make an advisory recommendation as to the minimum and maximum duration of imprisonment. The language is: ‘Provided that the Court shall, in each case, make an advisory recommendation of the minimum and maximum limits or duration of such imprisonment, and for the purpose of making such recommendation, may, after conviction of the person, consider the evidence, if any, received upon the trial, and the evidence, if any, as to aggravation and mitigation of the offense, received on a plea of guilty, and may also hear and receive evidence as to the moral character, life, family, occupation, and criminal record, if any, of such person so convicted. The advisory recommendation of the Court may recommend a minimum limit or duration of imprisonment greater than the minimum term provided by law for the offense for which the person stands convicted and a maximum limit or duration of imprisonment less than the maximum term provided by law for such offense. In no event shall the term of imprisonment or commitment be less than the minimum nor greater than the maximum term provided by law for such offense. The advisory recommendation of the Court shall in each case be entered upon the records thereof. It shall be deemed and taken as a part of every such sentence, as fully as though written therein, that the term of...