People v. Tabet

• Decision Date: 17 January 1949
• Docket Number: No. 30694.,30694.
• Citation: 402 Ill. 93,83 N.E.2d 329
• Parties: PEOPLE v. TABET et al.
• Court: Illinois Supreme Court

402 Ill. 93

83 N.E.2d 329

PEOPLE

v.TABET et al.

No. 30694.

Supreme Court of Illinois.

Nov. 18, 1948.

Rehearing Denied Jan. 17, 1949.

Error to Circuit Court, Winnebago County; William R. Dusher, judge.

Camile A. Tabet, George Voalk and Daniel Bardell were convicted of larceny, and they bring error.

Affirmed.

Thomas & Davis and Raphael E. Yalden, all of Rockford (Charles H. Davis and Henry H. Caldwell, both of Rockford, of counsel), for plaintiffs in error.

George F. Barrett, Atty. Gen. and Max A. Weston, State's Atty., of Rockford (John E. Sype, of Rockford, of counsel), for the People.

SIMPSON, Justice.

Plaintiffs in error, Camile A. Tabet, George Voalk and Daniel Bardell have sued out a writ of error to reverse a judgment based on a jury verdict against them in the Winnebago County circuit court. They were indicted jointly on two counts, the first of which charged larceny of a man's suit of cloths of the value of $55 and another of the value of $39.50, the property of Marion F. Ambrosius. The second count charged each with stealing the same property and also charged each with having theretofore been convicted of a felony for which he was sentenced. Motions for new trial and in arrest of judgment were overruled and the defendants were sentenced to the penitentiary.

The principle errors complained of are that the defendants were unlawfully arrested without a warrant, that evidence should have been suppressed because of unlawful search of an automobile and seizure of articles found therein, that a severance should have been granted, that counsel was unduly restricted in examination of the jurors, and that there was error in the giving, refusing and modifying of instructions.

On October 27, 1947, plaintiffs in error arrived in Rockford from Chicago about 2:00 P.M. where they visited several mercantile establishments and purchased a few small articles. During the afternoon they entered the M. F. Ambrosius clothing store where they hesitated in the front for a few minutes and then Tabet and Bardell approached a lady clerk and asked for size 34 moleskin breeches. She went to Mr. Ambrosius in the back of the store to inquire of him if such was in stock. He had never heard of breeches of that type and went forward to see the customers. He noticed one of the men whom he later identified as Voalk handling a couple of suits and who instantly put them under his topcoat and started out the door. In making his way forward Ambrosius found an aisle blocked by the other two men and he had to cut over to another to get through. He called to Voalk saying ‘I am going to wait on you,’ but Voalk did not stop and by the time Ambrosius got outside he was nowhere to be seen. Ambrosius asked the other two men if they were with Voalk and they said ‘No.’

The suit rack was checked by Ambrosius and he noted that two certain suits were missing. He saw these suits the next day at the police station and identified them as his property. He placed a value of $39.50 on one suit and $57.50 on the other.

The same afternoon the three plaintiffs in error appeared at the men's department in Hess Bros. store in Rockford shortly before 5 o'clock. An employee by the name of F. Vincent Johnson saw them and talked with Voalk and Bardell who were trying on a couple of garments after which they remained in the men's department for about fifteen minutes. During this time Johnson was called to the telephone where he received information from the manager of the men's department at Block & Kuhl's to the effect that there were three shoplifters in town. The description given him of the three men corresponded to the plaintiffs in error who were then in Johnson's department.

Tabet had in his possession a leatherette type bag about 18 to 20 inches long and 12 to 14 inches wide, the zipper of which was open. When Johnson returned from the telephone conversation Tabet walked out of the store, and the other two had made up their minds that the topcoat they had been looking at was not the type desired. Bardell had on a whipcord gabardine coat and as Johnson attempted to pull the fly of the coat open to look at the label, Bardell raised his arm so as to prevent it. Johnson realized that something had taken place while he was at the ‘phone where he could not see the place where the suits were. The two men went down several aisles and departed from the store. Johnson followed them out but they had crossed the street. He then saw police officer Fitzgerald and told him ‘There have been three shoplifters in the store-I am pretty certain they have gotten me for something.’ He pointed these two men out to the officer who was in uniform and who shouted to the men to stop. They looked back and then started to walk fast with the officer following them. They then started running and the officer ran in pursuit. He shouted to them twice when he was from thirty to fifty feet from them. They were traveling in the direction of the police station and were near it when overtaken.

After the officer gave chase to the two men Johnson returned to the store. About twenty minutes thereafter he again saw Tabet who had come back to the store and inquired of a friend of Johnson's if he had seen his (Tabet's) buddies. After taking the two men to the station, officer Fitzgerald returned to the store to ascertain a description of the third man and was told that this man had been back asking about his buddies. Tabet entered the store again and was watched until he stepped out the door when he was pointed out to the officer who stopped him.

No warrant had been issued for the arrest of any of the three men but they were arrested upon suspicion. When arrested Tabet had a bag in his hand and was in front of Hess Bros. store. A set of keys and a license card for a 1941 Dodge sedan was found on Tabet. He told the officers that his brother had let him off at the Hess Bros. store from a 1941 Dodge sedan. Search for that car was ordered giving the number of the license plates and soon thereafter a car bearing those plates was located but it was a 1946 Chrysler. Officers McDonnell and Hayes went to the car and by use of a flashlight saw clothing and other articles in the back seat of the car. The keys which they had procured from Tabet did not fit this car. The rear right door appeared to be locked the first time they tried it but on the third trial it opened. This permitted them to open the right front door. In the glove compartment was a set of keys which fit the Chrysler and the officers drove it to the police station where they found in the trunk three suit cases, three suits of clothes, two leather jackets, a blue shirt and a white shirt. There were five suits altogether in the car, two of which were folded on the back seat. Two of them, the ones mentioned in the indictment, were identified as being those taken from the Marion F. Ambrosius store. The officers had no search warrant when they searched Tabet nor when they entered the car and the trunk.

Tabet testified that there was but one set of keys for the Chrysler which he had on his person and that there were no keys in the glove compartment. Voalk and Bardell did not testify. Tabet testified that on the day in question he drove the 1946 Chrysler to Rockford with George Voalk and Daniel Bardell in the car. Each had theretofore made a statement to an officer that he had come to Rockford on a bus. It appears that Tabet had also previously told the officers that he drove to Rockford in a 1941 Dodge with his brother and girl friend. He denied making that statement. He also denied examining or handling the Ambrosius suits at any time and stated he did not see Voalk or Bardell handle either of them and that he did not carry them from the store, nor did they.

According to the People's testimony Tabet asked the officers what it was worth to made a deal, and told them to make it look good and they would make it right with them. Tabet denied making any such statement. The People's testimony also shows that Voalk told the officers that if the charge was reduced to petty larceny he could cop a plea and go along and make it right with them, otherwise he said ‘You go ahead and prove what you can and we will take whatever rap we get.’ This was not denied as Voalk did not testify.

Voalk and Bardell each told officer Hayes they had come alone to Rockford on a Bluebird bus but were advised by the officer that the Bluebird bus did not come to Rockford. Voalk stated to the officers that they had come to Rockford looking for work as window washers and expected to stay overnight at some hotel. Tabet testifed ‘I came to Rockford for two reasons-George Voalk wanted to stop at three or four factories to see about window washing and I was going to see about getting routes established for the juice business. I wasn't going to see anybody until the next morning. Bardell was going to contact someone about washing windows but did not before 5 o'clock.’ No toilet articles or night clothes were found in the suit cases and there is no evidence that they had interviewed any prospective employers or that they had made any arrangements for staying that night at any hotel. Tabet said that the Chrysler car was locked all around when he left it. His brother testified that he drove the Chrysler from Rockford to Chicago on November 4 or 5, 1947, and when he arrived in Chicago the lock on the right rear door was not working properly. A locksmith testified that he examined the car on December 13, 1947, and found that the lock on the right rear door and on the trunk appeared to have been forced open.

Plaintiffs in error say that because there was no warrant for their arrest or for the search of the automobile both were illegal and that their motion to suppress the evidence should therefore have been allowed. They cite section 6 of article II of our State constitution, Smith-Hurd Stats., and section 4 of division VI and section 3 of division VIII of the Criminal Code (...