People v. Neiman

Decision Date21 December 1967
Docket NumberGen. No. 67-46
Citation90 Ill.App.2d 337,232 N.E.2d 805
PartiesPEOPLE of the State of Illinois, Appellee, v. Fred NEIMAN, Appellant.
CourtUnited States Appellate Court of Illinois

LeFevour & Bailey, Oak Park, for appellant.

William Ketcham, Geneva, W. Ben Morgan, Elgin, for appellee.

DAVIS, Presiding Justice.

This is an appeal from a judgment entered in the Circuit Court of the 16th Judicial Circuit on the verdict of a jury which found the defendant guilty of armed robbery, on July 13, 1964, of the Fox Valley Country Club and its proprietors, Dal and Jean Whittle, and the attendant sentence of the defendant to the Illinois State Penitentiary for not less than fifteen nor more than twenty years.

The defendant contends that his conviction must be reversed because of the admission of certain evidence concerning an attempted jailbreak on December 21, 1964. It is his position, first that such evidence is inadmissible in any event, and secondly, that it must be inadmissible in this case in that, at the time he was incarcerated, more than one criminal charge was pending against him, and the evidence reflects no connection between the alleged jailbreak attempt and the charge in the indictment. He also asserts that error was committed in the method by which the State introduced evidence of the attempted jailbreak and by virtue of the prosecutor's use of evidence of a police lineup in which he was identified by the victims of the robbery.

The State urges that the evidence of the attempted jailbreak was properly admitted; that flight or attempted escape shows a consciousness of guilt or raises a presumption of it; and that the court did not err in permitting the two victims of the robbery to testify as to their identification of the defendant in a lineup at the Chicago Police Station, since they also positively identified him at the preliminary hearing and also at the trial.

Both Dal and Jean Whittle testified that the Fox Valley Country Club was robbed on the night of July 13, 1964. The Whittles--the owners and operators of the Club--were alone in the well-lighted Club about closing time when two men, one with a gun in hand, entered and stated that this was a holdup. The defendant, Neiman, who had neither hat nor mask, carried the gun. His accomplice ordered the Whittles to stand against the wall and later they were directed to lie on the floor, face down. Neiman's accomplice had difficulty opening one cash register and Jean Whittle was permitted to get up to assist in opening the cash drawer of the register. Money was taken from Dal Whittle's pockets. Both of the Whittles had ample opportunity to observe the defendant throughout the course of the robbery. During its progress, the defendant's revolver was discharged and he told the Whittles not to worry; that it was an accident; and that if they would lie still and be quiet they wouldn't get hurt

On September 13, 1964, the defendant voluntarily surrendered at the Shakespeare Police Station in Chicago for questioning in connection with certain unsolved crimes. The next day he was placed in a lineup at this station at which the victims of several robberies which had occurred in Kane County were present, along with officers from the Kane County Sheriff's office. At this lineup, Dal and Jean Whittle identified the defendant. Prior to this time no one had pointed him out to them. Jean Whittle identified the defendant by placing her hand on his shoulder. After identifying the defendant, she requested that he speak, and when he spoke she recognized his voice. The record does not indicate that the defendant was represented by counsel at the lineup on September 14, 1964.

On December 21, 1964, subsequent to the time when Neiman was indicted, one of the deputy sheriffs of Kane County--while investigating a tip given by Billy Alston, a jail inmate--searched the cell block in which the defendant and others were incarcerated and found hacksaw blades, a rope made from trousers and other evidence indicative of preparation to escape. Such facts were testified to by the deputy sheriff. On cross-examination of the deputy, counsel for the defendant elicited the fact that Billy Alston, the tipster, had told the deputy that the defendant had lowered a string from the jail to pull in the hacksaw blades and had planned the jailbreak; and that Alston also told the deputy that he (Alston) had seen the defendant sawing the bars.

The defendant testified on his own behalf. He stated that he had spent approximately 25 years of his life in Illinois penitentiaries; that a pending conviction had been reversed by the Supreme Court and this case was set for a new trial in Cook County on Monday, January 11, 1965. He denied that he had ever been in the Fox Valley Country Club or that he had anything to do with its robbery on July 13, 1964. He admitted that he appeared with four other men in the lineup in question, and that Mrs. Whittle identified him.

His testimony relative to the attempted jailbreak was as follows:

'Q. Now then in connection with this matter at the County Jail on or about December 21, 1964, will you tell the Court and Jury what if anything you know about your being involved in this attempted jail break?

A. 11 or 12 men in the County Jail at the time.

Q. In your cell block?

A. In my cell block, 3 north. Just to say who had anything sent in I would be lying, I don't know.

Q. Did you yourself have anything to do with sawing any bars or bringing any blades in or concealing any blades?

A. Mr. Lasswell, I know nobody in this territory. I haven't had a visit in six weeks down here from nobody. I know nobody from here.'

While the defendant urges that his conviction should be reversed because of the admission of evidence tending to show his attempted jailbreak from the Kane County jail, he cites no Illinois cases to sustain his position. Under the law of this State, evidence of flight of an accused or his attempted escape generally raises no legal presumption that he is guilty of the crime charged against him. In People v. Kidd, 410 Ill. 271, at page 277, 102 N.E.2d 141, at page 144 (1951), the court stated:

'The fact that he attempted to prevent his arrest by flight, when approached by officers some days later, was competent evidence indicative of a guilty mind. Jamison v. People, 145 Ill. 357, 34 N.E. 486. However, the fact that he fled when approached by police officers, raises no legal presumption that he is guilty of the particular crime charged in the indictment. The fact of flight is a circumstance which may be considered by the jury in connection with all the other facts and circumstances in evidence as tending to prove guilt. People v. Weber, 401 Ill. 584, 83 N.E.2d 297; People v. Schaffner, 382 Ill. 266, 46 N.E.2d 989; People v. Herbert, 361 Ill. 64, 196 N.E. 821.'

Also see: People v. Davis, 14 Ill.2d 196, 202, 151 N.E.2d 308 (1958). Flight or attempted escape is a circumstance which may be considered as tending to cast suspicion on the testimony of an accused if it conflicts with that of other witnesses (People v. White, 311 Ill. 356, 363, 143 N.E. 108 (1924)), and, in connection with all other evidence in the case, as tending to prove his guilt. People v. Herbert, 361 Ill. 64, 73, 196 N.E. 821 (1935).

The circumstance of flight, where proven, raises no legal presumption that the accused is guilty of the offense charged against him. It may be considered in connection with all of the other evidence in the case which tends to prove his guilt. People v. Herbert, supra. In People v. Brothers, 347 Ill. 530, at page 540, 180 N.E. 442, at page 446 (1932), the court stated:

'By the common law flight was considered so strong a presumption of guilt that in cases of treason and felony it carried the forfeiture of the party's goods, whether he were found guilty or acquitted. 1 Wharton on American Crim.Law, § 714. In this country flight does not generally raise a presumption of guilt but may be shown in evidence as a fact to be considered by the jury and from which they may draw an inference of guilt. Fox v. People, 95 Ill. 71; 16 Corpus Juris, 551.'

However, as a corollary rule, evidence explaining testimony which has been admitted or explaining a fact in evidence, if competent, is generally admissible. In People v. Autman, 393 Ill. 262, at pages 266 and 267, 65 N.E.2d 772, at page 774 (1946), the court stated:

'Proof of flight by the accused in a criminal case is admissible as a circumstance tending to show consciousness of guilt. It is only a circumstance which may be considered by the jury as tending to prove guilt and must be considered in connection with all the other evidence in the case. People v. Herbert, 361 Ill. 64, 196 N.E. 821, 825. In the case cited, this court said that flight, in criminal law, is defined as 'the evading of the course of justice by voluntarily withdrawing oneself in order to avoid arrest or detention, or the institution or continuance of criminal proceedings. The term signifies, in legal parlance, not merely a leaving, but a leaving or concealment under a consciousness of guilt and for the purpose of evading arrest. Such consciousness and purpose is that which gives to the act of leaving its real incriminating character.' In all cases the defendant has a right to show, by any competent evidence, facts which tend to prove that he did not leave the scene of the crime from a consciousness of guilt, but that his act in leaving was consistent with his innocence. People v. Bundy, 295 Ill. 322, 129 N.E. 189.'

Evidence of the escape or attempted escape of an accused after his arrest and while being taken to jail (People v. Gambino, 12 Ill.2d 29, 32, 145 N.E.2d 42 (1957)), or from jail while...

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18 cases
  • State v. Kelly
    • United States
    • Connecticut Supreme Court
    • May 8, 2001
    ...The defendant's argument also has been rejected by a number of courts from other jurisdictions. See, e.g., People v. Neiman, 90 Ill. App. 2d 337, 346, 232 N.E.2d 805 (1967) (rule excluding flight evidence due to existence of other charges "would reward the professional criminal and punish t......
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    ...(People v. Reed (1982), 108 Ill.App.3d 984, 64 Ill.Dec. 469, 439 N.E.2d 1277), or explains a fact in evidence (People v. Neiman (1967), 90 Ill.App.2d 337, 232 N.E.2d 805); it has been said that whatever is relevant is admissible, and " '[e]xceptions to that principle must justify themselves......
  • People v. Garcia
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    • California Court of Appeals Court of Appeals
    • November 14, 2008
    ...who was charged with only one offense. Such procedure would reward the professional criminal and punish the neophyte." (People v. Neiman (1967) 90 Ill.App.2d 337 An additional rationale for allowing the admission of such evidence is that "requiring the state to prove which crime caused a de......
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