People v. Pecho

• Citation: 362 Ill. 568,200 N.E. 860
• Decision Date: 10 April 1936
• Docket Number: No. 23334.,23334.
• Parties: PEOPLE v. PECHO et al.
• Court: Supreme Court of Illinois

362 Ill. 568

200 N.E. 860

PEOPLE

v.PECHO et al.

No. 23334.

Supreme Court of Illinois.

Feb. 19, 1936.

Rehearing Denied April 10, 1936.

Error to Criminal Court, Cook County; Joseph Sabath, Judge.

Ralph Pecho and another were convicted of robbery while armed with a dangerous weapon, and they bring error.

Affirmed.Albert E. Bucciere and Edward M. Keating, both of Chicago, for plaintiffs in error.

Otto Kerner, Atty. Gen., Thomas, J. Courtney, State's Atty., of Chicago, and A. B. Dennis, of Danville (Edward E. Wilson, John T. Gallagher, and Richard H. Devine, all of Chicago, of counsel), for the People.

WILSON, Justice.

The plaintiffs in error, Ralph Pecho and James Di Forti, otherwise called Charles De Naso, were indicted in the criminal court of Cook county for the crime of robbery while armed with a dangerous weapon. They were tried by a jury, found guilty, and sentenced to the penitentiary. By this writ of error they seek to reverse the judgment.

The robbery occurred on the morning of June 11, 1935, at 5157 Washington boulevard, Chicago. Two diamond rings, a wedding ring, and a $10 bill were taken from Mrs. Rae Hoover by two men under the following circumstances: Mrs. Hoover answered the door bell of her apartmentat about 10:35 o'clock, and two men were at the door. One held a revolver in his hand and stated that the purpose of their call was robbery. Upon entering the apartment, the two men went to a bedroom, and the man who was not armed took the rings and money from a dresser. Mrs. Hoover and the man who was armed went to the living room where they remained about twenty minutes while the first-mentioned robber continued a search through the house. Mrs. Hoover was directed by one of the robbers to hold her dog, which had been making a noise.

At about 11 o'clock two other men came to the apartment, rang the bell, and one of them announced that he was from the Metropolitan Insurance Company. Mrs. Hoover had been expecting him. When the insurance men were admitted, one of the robbers told them that it was a ‘stick-up,’ and one searched their pockets and took their money and a watch. The insurance men were tied with electric light cord fastened to their feet and wrists and ordered to lie on the floor. Mrs. Hoover's right hand was tied to the foot of one of these men and she continued to hold the dog with her left hand. The front door of the apartment remained closed, and the two men committing the robbery left from the rear. About five minutes after their departure Mrs. Hoover succeeded in freeing herself and the insurance men. Each of these three persons positively identified the defendants as the robbers.

Each defendant testified that he was elsewhere at the time of the robbery, and in support, of the defense of alibi two witnesses testified to seeing Di Forti at his home and other places at such times as would make it impossible for him to have been at the place of the crime at the time it is alleged to have been committed, and one witness testified to the presence of Pecho at the home of his mother-in-law, some distance from the place of the crime, engaged in painting the rooms of a house. Other witnesses testified partially corroborating the defense of alibi of the defendants.

The contentions are that the arrest was illegal; that the identifications at the detective bureau were improperly made; that the defense of alibi required consideration by the jury; and that the evidence was insufficient upon which to base the conviction. The ground of the first contention is that the defendants were arrested three days after the crime was committed without a warrant. Thomas Fallon, a police officer who was present at the time of the arrest of the defendants, testified that Sergeant Hanrahan, who, at the time of the trial, was in New York, knew the defendants, made them pull alongside the curb, and then sent them to the detective bureau for investigation. It does not appear that there was no warrant for the arrest of the defendants, nor that the police officers did not have reasonable ground for believing that the two defendants were implicated in a crime. Fallon's testimony does not raise a justifiable inference that there was no warrant for the arrest of the defendants or that there was not reasonable ground for believing that they were implicated in a crime. To justify an arrest without a warrant, the ground for belief that the person to be arrested is guilty of a crime must be such as would influence the conduct of a prudent and cautious man under the circumstances. People v. Humphreys, 353 Ill. 340, 187 N.E. 446;People v. McGurn, 341 Ill. 632, 173 N.E. 754;People v. Scalisi, 324 Ill. 131, 154 N.E. 715. But a police officer has the right to arrest without a warrant where he has reasonable ground for believing that the person to be arrested is implicated in a crime. People v. Humphreys, supra; People v. McGurn, supra; People v. Scalisi, supra, and People v. Swift, 319 Ill. 359, 150 N.E. 263. No objection appears to have been made in the trial court that the arrest was illegal, and that objection cannot be considered here for the first time. People v. Wright, 324 Ill. 29, 154 N.E. 408. One who seeks to reverse a judgment of conviction has the burden of showing that the proceedings of the trial court were illegal, as every reasonable intendment, not negatived by the record, will be indulged in support of the judgment. People v. Gerke, 332 Ill. 583, 164 N.E. 185. The errors relied upon for a reversal must clearly appear in the abstract. People v. Stevens, 335 Ill. 415, 167 N.E. 49;People v. Heywood, 321 Ill. 380, 152 N.E. 215.

It is next contended that the identification of the defendants was unsatisfactory; that the method of conducting the show-up at the detective bureau was not conducive to an accurate identification. The defendants testified that they were not identified when they were brought into the presence of the three persons upon whose testimony the identification rests, and that one of the defendants was only identified when the hat of the other defendant was placed on his head. On behalf of the prosecution, Di Forti was described as wearing a brown suit, white shirt, but that he had no hat. Pecho was described as wearing light trousers, a brown suede jacket, and a light felt hat which came far down over his forehead, but did not quite rest on his ears. At the detective bureau, Pecho wore light trousers, a shirt, and no jacket. Mrs. Hoover testified positively that, subsequent to the robbery, the next time she saw the defendants was at the show-up on June 16, at 2:30 o'clock in the afternoon, that there were eleven men in the line, and that the defendants were toward the center of it. She stated: ‘I didn't pick them out at that moment; I waited until they passed on. There was a new line formed in the squad room. They were the first two on the end of the first line that came out. I was alone with the detective, who questioned me. I picked out these first two. They were together in that second line when they lined up. They were together the first time they were lined up. I was absolutely positive they were the men the first time I looked at them. I could remember the faces. I knew them when I saw them. I saw them in the apartment long enough to identify them.’ She also testified that Di Forti had on the same gray hat at the detective bureau which Pecho wore at the time of the robbery; that it fit Di Forti, but was too large for Pecho. Pecho was bareheaded at the show-up, and she asked to have him put on Di Forti's hat, and, when he did so, it fitted down over his face the same way it did at the time of the robbery.

The testimony of James Kubat, one of the insurance men, upon the identification, was equally positive. He stated that he saw the defendants on Sunday evening, June 16, at 6 o'clock in a line in which there were four men. Pecho was made to put on a hat,...