People v. Rybka

• Decision Date: 20 March 1959
• Docket Number: No. 35043,35043
• Citation: 16 Ill.2d 394,158 N.E.2d 17
• Parties: PEOPLE of the State of Illinois, Defendant in Error, v. Ronald RYBKA et al., Plaintiffs in Error.
• Court: Illinois Supreme Court

Page 17

158 N.E.2d 17

16 Ill.2d 394

PEOPLE of the State of Illinois, Defendant in Error, v. Ronald RYBKA et al., Plaintiffs in Error.

No. 35043.

Supreme Court of Illinois.

March 20, 1959.

Rehearing Denied May 19, 1959.

Francis J. Kennedy, Edmund H. Grant, Michael H. Brodkin, Charles A. Bellows, and Jason Ernest Bellows, Chicago, for plaintiffs in error.

Latham Castle, Atty. Gen., and Benjamin S. Adamowski, State's Atty., Chicago (Fred G. Leach, Decatur, William H. South, Carmi, Francis X. Riley, and John T. Gallagher, Chicago, of counsel), for the People.

SCHAEFER, Justice.

The March, 1957, grand jury for Cook County indicted thirteen persons jointly for the murder of Alvin Palmer on March 11, 1957. Each of the defendants, Joseph Schwartz, Ronald Rybka, Thomas Trybula, Edward Fron, James Adams, Lawrence Adas, Lawrence Pavlik, Frank Nowobielski, Raymond Kozlowski, Andrew Budz, Edward Gorski, Alvin Zurek and Donald Duchak, pleaded not guilty and waived a trial by jury. Schwartz was granted a severance for trial. He was found guilty, and sentenced to imprisonment in the penitentiary for a term of 50 years. A severance was also granted to Adams and the indictment against him was subsequently nolle prossed by the State.

The eleven remaining defendants were tried jointly. Pavlik, Nowobielski, Zurek and Duchak were found not guilty. The other seven defendants were found guilty but Adas and Kozlowski were allowed a new trial. Motions for new trials were denied as to the others. Rybka was sentenced to imprisonment in the penitentiary for a term of 20 years, and Gorski, Trybula, Fron and Budz were each sentenced for a term of 14 years. The judgments convicting these five defendants are before us on writ of error. The major contention of each defendant is that the evidence was insufficient to prove his guilt beyond a reasonable doubt.

The following facts are not disputed. Alvin Palmer, a negro high school student, was struck on the head with a hammer by Joseph Schwartz at approximately 10:00 P. M. on March 11, 1957, and died the next morning without regaining consciousness. The assault, which was not provoked by Palmer, occurred at the corner of 59th Street and Kedzie Avenue on the south side of Chicago. Nowobielski, Adams, Pavlik and plaintiffs in error Rybka, Fron and Trybula were present when the crime was committed. With Schwartz, they had left a candy store at 51st Street and Wolcott at approximately 9:30 P. M. in an Oldsmobile automobile driven by Rybka. A second car, a Chrysler driven by Adas and carrying Zurek, Kozlowski, Duchak and plaintiffs in error Budz and Corski had left the candy store at the same time and followed behind the Oldsmobile until it reached 63rd Street and California where the two cars separated. All of the occupants of both cars were acquainted with one another, and all were under 21 years of age. Those in the Chrysler were not present when Schwartz attacked the deceased.

Each defendant in this case was charged with the crime of murder. There is no evidence indicating that any of the plaintiffs in error struck at Palmer or threatened him in any way. Section 2 of division II of our Criminal Code defines an accessory before the fact as 'he who stands by, and aids, abets or assits, or who not being present, aiding, abetting or assisting, hath advised, encouraged, aided or abetted the perpetration of the crime.' (Ill.Rev.Stat.1957, chap. 38, par. 582.) Proof beyond a reasonable doubt that a defendant acted as a principal or as an accessory before the fact will sustain a conviction on an indictment as a principal. People v. Woods, 393 Ill. 586, 66 N.E.2d 881. If these convictions are to be sustained, it must be on the ground that the plaintiffs in error were accessories before the fact. To sustain the convictions the State relies on the testimony of Wilmore Johnson, James Adams and Joseph Schwartz, and also upon statements made by each plaintiff in error.

Wilmore Johnson testified that he was standing near the corner of 59th and Kedzie waiting for a bus, and that a young boy whom he learned was Alvin Palmer was standing nearby. A white boy came across the street and looked at the Palmer boy and Johnson. 'He give us one of the nastiest looks I ever seen.' The white boy stood against a light post and stared at Palmer and Johnson for several minutes, then a bunch of boys came around the corner out of the alley. 'They came right by me walking on the sidewalk. It looked like they were marching. I'd say there were seven or eight of them walking in twos, then in threes, and then in twos and they got pretty close to the other boy that was standing on the corner, like all in a huddle, seemed like.' As soon as they got there the white boy who had been standing on the corner grabbed Palmer with his left arm and struck him with the hammer with his right. He then struck at Johnson with the hammer, saying, 'I'll kill you, you black son-of-a-bitch.' The boys ran around the corner after Palmer had fallen and the white boy had struck at Johnson with the hammer. He did not see anyone but the assailant touch Palmer, nor did he see any signs of recognition between the assailant and the other boys, and he heard nothing said except when the assailant struck at him with the hammer.

James Adams, who was indicted but not tried with the defendants, testified that he was with the defendants and Schwartz at the candy store on the night Palmer was murdered, that they left the store about 9:30 P. M. in the two cars, the Oldsmobile leading and the Chrysler following. He identified the occupants of each car, but denied that he had agreed to assault anyone or that such an agreement was made in his presence.

Joseph Schwartz was called as the court's witness and was cross-examined by an assistant State's Attorney and four defense counsel. He testified that all of the codefendants were at the candy store prior to the attack on Palmer and that there was a conversation outside the store about rolling someone and taking his money, topcoat and shoes; that the group then left in the Oldsmobile and the Chrysler, 'looking for a well-dressed man;' that he knew the boys in the Chrysler better and tried to get into that car but it already was full so he got into the Oldsmobile; that the Oldsmobile went first and the Chrysler followed to 63rd and California where 'they got a red light' and the Oldsmobile proceeded on to 59th and Kedzie and he got out of the car there. Schwartz' recollection as to who was present during the discussion outside the candy store and exactly what was said was hazy and partially self-contradictory. Of the plaintiffs in error he remembered only Gorski and Budz as being present and he was hesitant about Budz. He could not recall whether there was a continuation of the conversation in the Oldsmobile on the way to 59th and Kedzie. However, he had no difficulty remembering what transpired after the Oldsmobile arrived at 59th and Kedzie. He testified that he saw a colored boy on the corner whom he had since learned was Alvin Palmer. He got out of the Oldsmobile and crossed the street to a light pole where he stood for 'four or five minutes looking at the colored boy.' The Oldsmobile turned left on Kedzie and 'parked someplace' and the other boys 'came back in four or five minutes.' He saw them as they walked toward him on 59th Street and he did not attack Palmer until they came up to where he was standing. He then 'swung wild' and hit Palmer with the hammer. He and the other boys ran, and he got back into the Oldsmobile on a side street about a block away and they all went back to the candy store in the car. Schwartz denied that there was a 'plan' to assault a negro or rob anyone and claimed that he hit Palmer with the hammer on 'the spur of the moment.' He testified that one of the boys in the Oldsmobile told him they were coming back when he got out of the car, although he could not recall the exact words or by whom they were spoken. He also stated that he thought one of the boys from the Oldsmobile said either 'We're ready' or answered 'Yes' when he asked 'Are you ready?' as they joined him on the corner of 59th and Kedzie and that he hit the Palmer boy 'almost immediately' afterward.

Prior to their indictment each defendant had been questioned by an assistant State's Attorney concerning his knowledge of the murder of Alvin Palmer. Their statements, in question and answer form, were reduced to writing. Each statement was admitted as evidence only against the defendant who made the statement. Inasmuch as there is no indication in the record that any codefendant adopted the statement of another as his own, our review of the evidence available to sustain each conviction is similarly limited. People v. Childress, 1 Ill.2d 431, 115 N.E.2d 794. None of the plaintiffs in error contends that his statement was coerced or otherwise illegally induced.

Ronald Rybka admitted in his statement that before they left the candy store he had heard someone, he believed it to have been Schwartz, say 'Let's go and get some colored guys'; that six or seven boys, including Schwartz, jumped into his car; that he drove but Schwartz told him which way to go; that the plan was to get a negro in a white neighborhood and take his shoes by force or otherwise; that Schwartz had the hammer in the car and when Rybka asked what Schwartz intended to do with it Schwartz replied, 'Hit him'; that when Rybka said that they had enough guys and should just use their fists, Schwartz said 'No'; that Schwartz said 'There's one' when they reached 59th and Kedzie and he saw a negro standing on the corner; that Schwartz got out of the car and Rybka asked Schwartz to get back in but Schwartz told him to go around the corner and park the car; that Schwartz had the hammer when he got out of the car and that Rybka knew what Schwartz was going to do with it; that he parked the car and walked back with the other boys to 59th and Kedzie where...