People v. Morgan
| Decision Date | 28 November 1960 |
| Docket Number | No. 35409,35409 |
| Parties | PEOPLE of the State of Illinois, Defendant in Error, v. Fred MORGAN, Plaintiff in Error. |
| Court | Illinois Supreme Court |
William L. Littlejohn, Jr., Chicago, for plaintiff in error.
Grenville Beardsley, Atty. Gen., and Benjamin S. Adamowski, State's Atty., Chicago (Fred G. Leach, Asst. Atty. Gen., and Francis X. Riley and Marvin E. Aspen, Asst. State's Attys., Chicago, of counsel), for defendant in error.
A jury in the criminal court of Cook County found the defendant, Fred Morgan, guilty of the crime of larceny from the person. He was sentenced to the penitentiary for a term of not less than five nor more than ten years. On this writ of error he contends that the evidence was insufficient to establish his guilt beyond a reasonable doubt and that the State's Attorney's argument before the jury was prejudicial.
The case was prosecuted on the theory that the defendant was an accessory before the fact. Section 2 of dividion II of the Criminal Code defines an accessory before the fact as one 'who stands by, and aids, abets or assists.' Ill.Rev.Stat.1959, chap. 38, par. 582. Proof of guilt as an accessory before the fact will sustain a conviction on an indictment as a principal. People v. Rybka, 16 Ill.2d 394, 397, 158 N.E.2d 17.
Frank Konkel testified that he fell asleep while riding on a Chicago Transit Authority elevated train and that he had a one-dollar bill in his left hand trouser pocket. He said that he felt a hand in that pocket, and that when he awoke he saw the defendant and three other men, two of whom identified themselves as Chicago Transit Authority police officers.
The Chicago Transit Authority police officers, John O'Connor and Peter Messin, testified that when they boarded the train they observed Konel asleep. They took seats across the aisle from the sleeping man, O'Connor sitting two seats to the rear of Konkel and facing in the same direction, and Messin sitting in front of and facing O'Connor. Shortly thereafter, the defendant and Charles Morton entered the train. The officers testified that the two men stood near the door, talking and looking 'the train over' for a minute before taking seats. Although all of the seats around the sleeping man were empty, Morton chose a seat beside Konkel and the defendant sat in the empty seat in front of him. Messin and O'Connor testified that they then saw Morton place his right hand into Konkel's left hand trouser pocket, pull out a bill, and hand it over the back of the seat to the defendant. They also stated that when Messin walked toward the pair and showed them his star, the defendant dropped a dollar bill to the floor.
Morton was sentenced to the county jail after he pleaded guilty in a separate trial. He testified in this case on behalf of the defendant and denied that he had put his hand in Konkel's pocket or passed any money to the defendant. He testified that he did not sit with the defendant because, due to the way the latter was sitting, it would have been 'sort of crowded,' and that he merely leaned forward to ask the defendant how far he was going. He stated that he pleaded guilty On cross-examination he admitted that the judge before whom he pleaded guilty had advised him of his rights and explained the consequences of a plea of guilty.
It was within the province of the jury to determine the weight of the evidence and the credibility of the witnesses. It is only where we can say that there is clearly a reasonable doubt of the guilt of the accused that we will substitute our judgment for that of the jury. Upon this record, the jury was warranted in finding the defendant guilty beyond a reasonable doubt.
The defendant contends that the prosecutor's closing argument was so prejudicial as to deprive him of a fair trial. He vigorously urges that the prosecutor, by his repeated assertions that Morton was the only witness for the defense, violated the statute which provides that a defendant's failure 'to testify shall not create any presumption against him, nor shall the court permit any reference or comment to be made to or upon such neglect.' Ill.Rev.Stat.1959, chap. 38, par. 734. And he points out that, without justification in the evidence, the prosecutor characterized him as a professional pickpocket.
The People insist that there was neither a direct nor an indirect reference to the failure of the defendant to testify in his own defense, and therefore that...
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