People v. Schanda

• Decision Date: 11 April 1933
• Docket Number: No. 21658.,21658.
• Citation: 185 N.E. 183,352 Ill. 36
• Parties: PEOPLE v. SCHANDA.
• Court: Illinois Supreme Court

352 Ill. 36

185 N.E. 183

PEOPLE

v.SCHANDA.

No. 21658.

Supreme Court of Illinois.

Feb. 23, 1933.

Rehearing Denied April 11, 1933.

Error to Circuit Court, Will County; Frederick A. Hill, Judge.

Frank Schanda was convicted of murder, and he brings error.

Affirmed.Joseph Lustfield, of Chicago (Ode L. Rankin, of Chicago, of counsel), for plaintiff in error.

Oscar E. Carlstrom, Atty. Gen., Hjalmar Rehn, State's Atty., of Joliet, J. J. Neiger, of Springfield, and James E. Burke, of Joliet, for the People.

DUNCAN, Justice.

Plaintiff in error, Frank Schanda (herein called defendant), was indicted, tried, and convicted in the circuit court of Will county for the murder of William Schmook. After his motions for new trial and in arrest of judgment had been overruled, he was sentenced to imprisonment in the penitentiary for a term of ninety-nine years, the penalty fixed by the verdict of the jury. He has sued out a writ of error from this court for a review of the record.

Elizabeth McMullen, the only witness to the homicide, testified for the people substantially as follows: She was eighteen years old and lived in Chicago. On January 10, 1932, her father was, and for about a year prior thereto had been, the owner of a lunch stand and gasoline station located at the southeast corner of the intersection of Lincoln highway and Kean avenue, at Frankfort, in Will county. Lincoln highway runs east and west and Kean avenue north and south. The lunch stand faced west and sat back some distance from the highway. There were two doors in the west side of the building, called the north door and the south door. On the inside the lunch room was about eighteen by thirty feet in size. There was a counter which made a right angle near the southeast corner of the lunch room and paralleled the south and east sides thereof and was a few feet from its east and south walls. There were no stools or chairs at this counter, but there were four tables in the room at which customers were served. Between the north and south doors there was a window, and one of the tables was located against the west wall of the room, below this window. There was a heating stove in the middle of the room, a telephone booth in the northeast corner of the room, and a davenport along the east wall of the room. On the east side, at the south of the building, there was a separate room connected with the lunch room by a doorway, across which was hung a curtain. In this room was a refrigerator, a table, and a cot. The lunch room was lighted by three electric lights that hung down about three feet from the ceiling. These lights were in a row across the room from north to south. The light on the south side of the room was over the counter running east and west and was not shaded in any way. The other two lights were shaded with orange tissue paper. On said date witness was conducting the business of the lunch room, and William Schmook, who was about sixty years of age, was looking after the gasoline and oil business. About 10 o'clock p. m. of that day witness was sitting on the davenport and Schmook was sitting on a chair at the table against the west wall of the lunch room. No other person was in the room. The defendant and another man came into the lunch room through the north door. Witness got up and stood behind the counter. These men walked near the counter underneath the unshaded light. They were not more than two feet from witness. They had nothing over their faces and she could see them plainly. They asked if they could get coffee. She replied that they could and asked if that was all they wanted, to which the defendant replied that it was. She turned on the gas under the coffee urn, set two cups and saucers on the counter, and went to the refrigerator to get cream. She returned to the lunch room proper with two small containers of cream, walked to the table in the center of the room, and set these containers on the table. The man who came into the lunch room with the defendant stuck the muzzle of a gun in her side and said: ‘Get in the back room; it is a holdup.’ She then saw Schmook struggling with the defendant, who had a pistol in his hand. Schmook had hold of the defendant's wrist. The man who had the pistol in her side said to the defendant: ‘Hit him over the head.’ Witness jerked away from the man beside her and ran out of the north door. She screamed and started to run across the highway. When she got on the highway she heard a shot. She glanced back and saw an automobile near the lunch stand with two men in the back seat. She ran to a house across the highway and pounded on the door but was unable to arouse any one. She started back to the lunch stand and saw the automobile proceed east on the highway. When she got into the lunch stand she saw blood on the floor. Schmook was ‘half on the davenport and half on the floor.’ There was blood on his head and he seemed to be in agony. She called for the police and a doctor. She did not see Schmook after he was taken from the lunch room. She had never seen the defendant before that evening but was sure he was one of the men who came into the lunch room at that time. About $400 in currency, which was receipts from the sale of gas and oil and which had been kept in a box in the side room, was found to be missing after Schmook had been taken to a hospital.

Joseph O'Neil, a sergeant of the state police, testified for the people that he went to the lunch stand on the night of January 10, 1932, and found William Schmook lying on the floor. He put Schmook in a car and took him to a hospital. Schmook was alive when put in the car but was dead when they got to the hospital.

Dr. Walter V. Hedges, a witness for the people, testified that he was called to the lunch counter and oil station at about 10 o'clock on the evening of January 10, 1932. He there found the deceased, William Schmook, lying on the floor. He had been shot in the abdomen and through the web between the thumb and first finger of one hand. He had also been ‘dealt a blow on the head.’ The hand was blackened. There were no powder marks on the wound in the abdomen. That wound was in the upper gastric region, below the ribs. Witness could not positively say which direction the bullettraveled, but it appeared to be on a downward angle. In witness' opinion the gunshot wound in the abdomen was a fatal wound. Deceased was taken away from the lunch stand by Officer O'Neil. He was alive and conscious at the time he was taken away. Witness did not see him after that time.

About 5 o'clock in the afternoon of March 4, 1932, the defendant and another man came into the McMullen lunch room, which was then in charge of witness Elizabeth McMullen. The defendant and his companion each ate a sandwich there. They then bought some cigarettes, left the lunch room, got into a new Pontiac automobile which they had parked outside the lunch room, and drove east on the highway. As they were leaving the lunch room, Officer Edward Gast came into it and Miss McMullen informed him that one of those men was the man who killed Schmook. Gast did not follow them but sat down and had some lunch. Before he had finished eating, the defendant and his companion drove up to an automobile filling station connected with a garage across the highway from the lunch stand. Gast went across the highway to this garage. He summoned Miss McMullen and pointing to the defendant asked her if he was the man. She replied that he was. Gast then arrested the defendant, searched him, and took from him a pistol. He also arrested the defendant's companion. Officer Knater then came to the filling station, and he and Gast took the defendant and his companion to the Will county jail, in Joliet, where the defendant was questioned until about 3 o'clock in the morning. Gast testified that when he arrested the defendant he informed him that he was arrested for murder. Both Gast and Knater testified that the defendant at the filling station offered them $500 each to allow him to escape. On the way to Joliet he offered them $750 each, and later $1,000 each, and finally all the money he had and a diamond stud that he wore in his necktie, if they would allow him to make his escape. When he was put into the Will county jail he had on his person $2,204.50.

The only evidence for the defendant was his testimony, which is in substance as follows: On the evening of January 10, 1932, he lived in Maywood, Ill., with his wife. On that evening Mr. and Mrs. Frank Wilson had dinner with him and his wife at his home. They left his home about 9:30 o'clock that evening and thereafter he was at his home with his wife and in the company of no one else. He was not in the McMullen lunch room on the evening of January 10, 1932. He never shot Schmook and did not learn of his having been killed until after witness was arrested. He never at any time shot or killed any one. On the morning of January 11, 1932, he went to Wilson's home, and Wilson's landlady told him that Wilson had been arrested by the Chicago police and that the police were looking for witness. He then went back and got his wife. They stayed in Chicago for a day and then went to Nebraska and then to New Orleans. After that time, and before his arrest, he was in Chicago several times. He was engaged in hauling liquor from New Orleans to Chicago. On the Sunday before he was arrested he took his wife, who was pregnant, to a house about two miles east of the McMullen lunch room and left her there. After he and his companion had sandwiches at the McMullen lunch room on March 4, 1932 (the day he was arrested), he drove east to this house and visited his wife. He then drove back to the filling station and was getting gasoline in his tank and air in his tires preparatory to making a trip to New Orleans when he was arrested. He also stated that at the time Gast arrested him Miss McMullen told Gast that she was not sure he was the man. He stated that he told the officers when he...