People v. Ruben

• Court: Illinois Supreme Court
• Writing for the Court: ORR
• Citation: People v. Ruben , 366 Ill. 29, 7 N.E.2d 744 (Ill. 1937)
• Decision Date: 19 April 1937
• Docket Number: Gen. No. 23952.
• Parties: PEOPLE v. RUBEN et al.

366 Ill. 29

7 N.E.2d 744

PEOPLE

v.RUBEN et al.

Gen. No. 23952.

Supreme Court of Illinois.

Feb. 18, 1937.

Rehearing Denied April 19, 1937.

Error to Criminal Court, Cook County; John C. Lewe, Judge.

Sam Ruben and Nathan Kodner were convicted of larceny, and they bring error.

Judgment affirmed.James M. Burke and George M. Crane, 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, William B. Crawford, Melvin S. Rembe, and Blair L. Varnes, all of Chicago, of counsel), for the People.

ORR, Justice.

Sam Ruben and Nathan Kodner, residents of Milwaukee, Wis., were indicted in Cook county in December, 1935, for the larceny of a Chevrolet automobile belonging to Donald Burchman of Chicago. They were found guilty by a jury in the criminal court and have sued out this writ of error to reverse the judgment.

In July, 1934, Herman Claussen owned a Chevrolet de luxe coach, which was badly damaged in a collision. The damaged car was taken in on a trade allowance at $100 by the Irving Park Motors. This concern sold the car through the medium of John Jubert, who ran the garage where the car was stored, to Phil Lehman, for $80. This particular Chevrolet bore motor No. 3178241. Burchman owned a Chevrolet two-door coach with an olive green body, bearing motor No. 2969817, and equipped with an Atlas tire bearing No. JV5E104741. His car was stolen September 14, 1934, in Chicago, and Burchman next saw it in Milwaukee in the garage of Ruben and Kodner. He positively identified it by the number on the tire and by certain distinguishing marks on the body. When recovered, the original motor of the Burchman car had been removed, and the motor from Claussen's wrecked Chevrolet had been substituted.

Phil Lehman conducted a garage in Niles. Ruben and Kodner were dealers in used cars in Milwaukee, and bought used cars from Lehman. The evidence specifically concerned four used cars sold by Lehman to Ruben and Kodner and delivered by him to them in Milwaukee. The car stolen from Burchman was one of the four. Prior to this theft, Lehman testified that on one of his visits to Ruben and Kodner, the former asked him if he could procure some ‘hot’ cars. He then professed his inability, but shortly thereafter took Brady, a paroled convict, with him to Milwaukee and told Ruben and Kodner that Brady could get ‘hot’ cars. Ruben instructed them, according to Lehman, to go out and purchase a wrecked car, obtain a title or bill of sale therefor, steal a like car, remove the motor and substitute the motor from the wrecked car. The motor from the ‘hot’ car was to be destroyed and the chassis number of the wrecked car placed on the stolen car and the wrecked car destroyed. The result, according to Ruben, would be a legitimate car with a legitimate title. The thieving was to be confined to Fords and Chevrolets.

Lehman related he went to the Jubert garage, inspected Claussen's wrecked Chevrolet and purchased it for $80. He paid $20 down, and went to Milwaukee where he told Ruben and Kodner he had located a wrecked 1932 Chevrolet, de luxe model, and he did not have money enough to buy it himself. A few days later Kodner and one Drapela, an employee, came to Lehman's garage and expressed a desire to see the wrecked Chevrolet. Lehman drove them to Jubert's garage where Kodner inspected the car. He gave Lehman $75 with which to complete the purchase and told him to steal a car just like it, having the same color and to change the motor. After the wrecked Chevrolet was placed in his garage, Lehman and Brady salvaged the motor, transmission, and rear axle; the rest was thrown into a gravel pit. Ruben again told the witness to hurry and steal a car which would match the wrecked one, as he had a market for it. After Brady had failed repeatedly to steal such a car, an escaped convict from the Oklahoma penitentiary named Stulka appeared on the scene. He soon brought in a stolen 1932 Chevrolet de luxe model with a green body for which he was paid $25. This was Burchman's car. The motor and transmission were taken from this car by Lehman and Brady, broken up and thrown into a gravel pit. The number was chiseled off the body. The motor from Claussen's wrecked Chevrolet was then placed in the stolen car and the body number from the wrecked car was placed on it. After this, the stolen car was driven to Milwaukee on September 17, 1934, and Ruben paid Lehman $205 for it, later turning it over to one Levin, his nephew. No bill of sale was given with the car and Ruben told the police he did not receive one.

John Carnell, a Milwaukee detective, testified he had taken a supply of report blanks to Ruben and Kodner on which they agreed to make daily reports by mail to the Milwaukee police of cars purchased by them. None of the reports listed any one of the four cars which the People established were stolen and had passed through the hands of Ruben and Kodner. The state of Wisconsin required reports be made by dealers in used cars to the secretary of state every month. Cars stolen through the conspiracy of Ruben, Kodner, Lehman, and Brady were not reported to that official as having passed through the hands of Ruben and Kodner. On the city blanks there was reported a Ford car with a motor number, 3178248, with part of a serial number 21BA06. The report said this car was purchased from Phil Lehman at Niles, Ill. The witness could not find the car in the garage and told Ruben that Fords did not have serial numbers. He inspected the particular car this report covered and found the report of the handling of a Ford really covered the stolen Burchman Chevrolet then in the hands of Levin.

Brady, the paroled convict from an Illinois penitentiary, was sent back to prison for breaking his parole, but was produced in court as a witness for the People. His testimony was substantially like that of Lehman's. He testified he first called Lehman concerning the wrecked Chevrolet belonging to the Irving Park Motors, which was stored in Jubert's garage and he was present when Lehman made the $20 deposit. He aided Lehman in making the changes on the two cars. He accompanied Lehman to Milwaukee when the stolen Burchman Chevrolet was delivered and engaged in conversation with Ruben and Kodner concerning the work done to prevent detection of the theft and alteration.

Lehman and Brady were jointly indicted with Ruben and Kodner. Brady was not prosecuted but was returned to prison as a parole violator. Lehman, for aiding the People in the case, was released on probation for one year on his own recognizance. By other testimony and the introduction of exhibits the People connected the events subsequent to the theft of the Burchman Chevrolet. In order to connect Ruben and Kodner with Lehman and Brady in a conspiracy to steal automobiles the People proved the theft of three others. These were stolen by Brady, delivered to Lehman for motor changes and alterations to disguise their identity, then delivered to Ruben and Kodner who paid Lehman for them. The three cars were afterwards sold to innocent purchasers.

Ruben and Kodner denied buying the Burchman car, or the other three cars, from Lehman with knowledge of their theft. They denied ever entering into any agreement or arrangement with Lehman concerning the purchase of stolen cars, or that they ever knowingly purchased any stolen cars from either Lehman or Brady at any time. They admitted knowing Lehman and Brady but denied that Lehman ever informed them Brady was an ex-convict who would steal cars. According to their testimony all cars purchased from Lehman and Brady were purchased in good faith and in the ordinary course of trade. Other witnesses testified that defendants each possessed a good reputation among friends and business associates in his community.

Many errors are assigned by the defendants. Several of them based upon remarks by the prosecuting attorneys during the examination of witnesses and in their arguments to the jury must be ignored, as no objections were made thereto during the course of the trial. Defendants were ably represented in the court below by counsel who evidently did not believe those particular remarks were objectionable. If he neglected to interpose objections when they should have been made, the objectionable language or conduct is not reviewable in this court. Graham v. People, 115 Ill. 566, 4 N.E. 790;Lipsey v. People, 227 Ill. 364, 81 N.E. 348;People v. Fitzgibbons, 346 Ill. 338, 179 N.E. 106. Where an objection was made and then withdrawn during the trial, nothing is preserved for review. People v. Buoniconti, 340 Ill. 299, 172 N.E. 728.

An error asserted is the failure of the trial court to allow the motion of defendants, made at the close of the evidence in chief for the People, for a directed verdict of not guilty. At this time two witnesses had sworn they...