People v. Susanec

• Decision Date: 20 November 1947
• Docket Number: No. 30368.,30368.
• Citation: 398 Ill. 507,76 N.E.2d 33
• Parties: PEOPLE v. SUSANEC.
• Court: Illinois Supreme Court

398 Ill. 507

76 N.E.2d 33

PEOPLE

v.SUSANEC.

No. 30368.

Supreme Court of Illinois.

Nov. 20, 1947.

Error to Criminal Court, Cook County; Julius Miner, Judge.

John Susanec was convicted of robbery, and he brings error.

Affirmed.

Joseph Lustfield, of Chicago, for plaintiff in error.

George F. Barrett, Atty. Gen., and William J. Tuohy, State's Atty., of Chicago (John T. Gallagher and Melvin S. Rembe, both of Chicago, of counsel), for the people.

THOMPSON, Justice.

John Susanec and Frank Valecek were jointly indicted in the criminal court of Cook County for the crime of robbery. The indictment consisted of three counts. The first charged the defendants with robbing James Benakis of a watch and that they were then and there armed with a certain pistol. The second charged robbery while armed with a dangerous weapon. The third count charged robbery but omitted the charge of the defendants being armed. On a trial by jury both defendants were found guilty as charged in the indictment and each was found to have been armed with a pistol. They were sentenced to the State penitentiary for a term not less than 20 nor more than 35 years. Susanec has sued out a writ of error in this court to review the record of his conviction.

The grounds urged for reversal are that the evidence does not establish guilt beyond a reasonable doubt, and that there was prejudicial error in the giving and refusing of certain instructions.

The evidence discloses that James Benakis, James Economos and James Tsoutis were engaged as partners in the restaurant and tavern business, operating the Presto restaurant at 2137 South Oak Park Avenue, Berwyn, Illinois. The building in which the restaurant and tavern was located is on the east side of the street with an alley to the south. It runs east and west the full length of the lot. The kitchen is at the extreme rear and east end of the building. A door leads out of the kitchen to a vestibule or hallway and from this hallway there are stairs leading to the basement and a door to the alley. At the time of the alleged offense the door was equippedwith a Yale lock and a two-by-four bracket across the back of the door which was always kept locked. The tavern is separated from the restaurant and separate cash registers are used in carrying on the business. In the basement there are several stock rooms and a room described as the ‘office.’ The door to this office is equipped with a lock and also a padlock. The partners had separate keys for each of these locks. A steel locker was kept in the office, which, among other things, contained money. There was also a table and chairs in the office and on the table Benakis testified he had an open-faced gold watch, which is the watch alleged to have been taken by the defendants.

On Sunday morning, May 5, 1946, about 2:00 a.m., James Tsoutis was behind the bar with a bartender assisting with the work and James Benakis was supervising the business both in the restaurant and the bar. At that time he was called to the kitchen and his attention was directed to the fact that the back door was open. Looking down the stairs to the basement he saw the two-by-four lying on the stairs, together with a crowbar. He immediately started down the stairs calling to one Cooper, a colored man employed by him whom he knew was in the basement. At this time a man with a gun came up to him and told him to come down. At the trial Benakis identified the defendant Frank Valecek as this man. Valecek took him to the office door and asked for the keys. Benakis told him he did not have any keys. Then another man with a mask and a gun appeared with Cooper. He put his hands in Benakis' pocket but took nothing out, although there was some money in his pocket, a watch in his vest and the keys to his office and locker in his rear pocket Valecek started to open the office door with the crowbar and the other man put Benakis and Cooper in the icebox. Just before they were put into the icebox Benakis saw Valecek open the door and enter the office. About this time, Frank Risher, a customer, went downstairs and there saw a man with a hood on. He went upstairs, got a gun, and as the man with the hood was stepping into the alley, fired three shots at him. Risher then started into the alley after him but was struck on the head from the rear and knocked down and was momentarily unconscious. As he raised himself he saw a man running in the alley and fired the remaining shots at him. Benakis and Cooper were released from the icebox about four or five minutes after they were put in.

Benakis testified that when he was released from the icebox he looked in the office and saw that his watch was not on the table although it had been there about a half hour before when he had been down in the office to get change for the restaurant and bar.

Neither of the defendants testified in their own behalf at the trial, but it is clear from the evidence that they were the parties engaged in the robbery. One Zatloukal, a cook, testified that after Risher fired the shots at the man with the hood, everybody rushed downstairs. Benakis testified that upon going into the alley he found a gun which he turned over to police. Officer Michaels testified that after questioning various witnesses at the restaurant he entered the alley and found a spot of blood, and that he found more further on and followed the trail through the alley east to Euclid Avenue and then south to Cermak Road and along the road on Cermak Road east to 6638 Cermak Road and that there on the street he found a pool of blood. James Houda testified that he was going home from a party, walking east on Cermak Road, and on Euclid Avenue he had crossed on the south side of Cermak Road and that when he was on the southeast corner of Cermak and Euclid, he heard some shots and saw a man running from the alley; that this man ran to where a car was parked, got in the back seat, and in a minute or so another man came running and got in the car and they drove west on Cermak Road; that he made a note of the last three numbers of the license plates of the car, went to the Berwyn police station and made a statement to the police.

Doctor Otto C. Koluvec testified that about 3:00 a.m., on the morning of the robbery he was called to the telephone by the wife of John Susanec; that in about 25 minutes Frank Valecek, with the wife of the defendant, John Susanec, called for him at his home and drove him to 2636 W. Twenty-third Street, where he found John Susanec suffering from gunshot wounds; that after he administered morphine he called the police. Susanec was taken to the Bridewell Hospital and it was shown by the evidence that the bullet removed from his body had been fired from the gun Risher had used in shooting at the man fleeing from the tavern and restaurant.

The officers all testified to examining Valecek's automobile at his house and at the police station, and found a blood stain on the rear seat cover and a blood spot on the back of the front seat cover.

Benakis and Zatloukal identified Valecek as the man in the basement with the gun. The defendant Susanec was not identified by any of the witnesses, all of the evidence as to him being circumstantial. The watch was never recovered. It was not found on the defendants nor in Valecek's house when it was searched by the police.

It...