People v. Trefonas

• Decision Date: 15 June 1956
• Docket Number: No. 33899,33899
• Citation: 136 N.E.2d 817,9 Ill.2d 92
• Parties: The PEOPLE of the State of Illinois, Defendant in Error, v. George Peter TREFONAS, Plaintiff in Error.
• Court: Illinois Supreme Court

Page 817

136 N.E.2d 817

9 Ill.2d 92

The PEOPLE of the State of Illinois, Defendant in Error, v. George Peter TREFONAS, Plaintiff in Error.

No. 33899.

Supreme Court of Illinois.

June 15, 1956.

Rehearing Denied Sept. 24, 1956.

Sydney R. Marovitz, Chicago (Richard H. Devine, Chicago, of counsel), for plaintiff in error.

Latham Castle, Atty. Gen., and John Gutknecht, State's Attorney, Chicago (Fred G. Leach, Decatur, Edwin A. Strugala, Irwin D. Bloch, John T. Gallagher, Rudolph L. Janega, and William L. Carlin, Chicago, of counsel), for the People.

MAXWELL, Justice.

George Peter Trefonas, plaintiff in error, hereinafter called defendant, along with two other persons, was charged with larceny and accessory after the fact of larceny by the grand jury of Cook County in an indictment filed in the criminal court of Cook County at the July, 1954, term. The three entered pleas of not guilty and were tried jointly. Defendant was convicted, after waiver of trial by jury, of the offense of larceny and the value of the property was found to be $10,000. Motions for new trial and arrest of judgment were overruled. Thereafter defendant was sentenced to the penitentiary.

By writ of error defendant seeks to review the judgment of conviction, the principal errors assigned being the court erred in admitting incompetent evidence; the People did not prove the corpus delicti of the crime of larceny beyond a reasonable doubt; the People did not prove venue beyond a reasonable doubt; defendant did not receive a fair trial because of the indicated hostile attitude of the trial judge toward the defendant; the evidence does not prove the defendant guilty beyond a reasonable doubt.

Upon the trial evidence was introduced by the People to show that on April 1, 1954, Hiram Walker & Sons, Peoria, Illinois, shipped collect to Chicago, via Decatur Cartage Company, 875 cases of whiskey and 51 cases of wine. The trailer, No. 30198, containing the merchandise arrived at the Chicago yard of the cartage company the following day. Two days later the Chicago police were notified by the cartage company of the disappearance of trailer No. 30198 containing the whiskey and wine. Later the same day, the missing trailer was found abandoned and empty with the name 'Decatur' painted out with black paint. Subsequently 544 cases of whiskey and 51 cases of wine were recovered by the cartage detail of the Chicago police.

It was incumbent upon the People to prove that the larceny was of cases of whiskey and wines received by Decatur Cartage Company from Hiram Walker & Sons in Peoria, Illinois, on April 1, 1954; that trailer No. 30198 containing the said whiskey and wines entered the Decatur Cartage Company lot in Chicago, on April 2, 1954. The evidence on these points is that of Albert J. Evenson, general claim agent for Decatur Cartage Company, who testified for the People. On direct examination he produced a memorandum, People's group exhibit No. 1, and testified the memorandum was made under his direction and supervision by a third party employee in the due course of business. On page 3, column 2, on the 18th line from the top are the pencil figures '30198' with a circle around them. Evenson testified that People's group exhibit No. 1 indicated that the load on trailer No. 30198 came on the cartage company lot in Chicago on April 2, 1954.

When asked if he had any records with him to show what the load was on trailer No. 30198 on April 2, 1954, Evenson produced Decatur Cartage Company delivery receipt No. 815444 dated April 1, 1954, showing consignor to be Hiram Walker & Sons, Peoria, Illinois. The delivery receipt, identified as People's exhibit 2, indicated that on April 1, 1954, Decatur Cartage Company had received from consignor at Peoria, Illinois, 875 cases of whiskey and 51 cases of wine in trailer No. 30198. Evenson was asked a question or two regarding the delivery receipt when counsel for defendant objected asserting that the document was the best evidence. Whereupon the People offered People's exhibit 2. Counsel for defendant then objected to it until he had the right to cross-examine.

Evenson next identified a manifest of a liquor shipment, People's exhibit 3, as another record of the articles that were on trailer No. 30198. Thereafter the People offered People's exhibits 1, 2 and 3. Counsel for defendant said, 'We object to them at this time, until we have a right to cross-examine.' Whereupon the court said, 'subject to the right of cross-examination, they may be received in evidence.'

Direct examination of Evenson continued. He produced a work sheet, prepared by him, showing the loss sustained by a comparison of the serial number figures on the manifest, People's exhibit 3, and a list of serial numbers of recovered cases of liquor as given him by the police. The People offered the work sheet in evidence as People's exhibit 4. Counsel for defendant said, 'The same objection, subject to cross-examination.' The trial court said, 'It may be received, subject to cross-examination.'

At the conclusion of the direct examination of Evenson, counsel for defendant cross-examined him. No other witness testified regarding the four exhibits. No evidence was offered to show by whom they were made or any attempt made to explain the nonproduction of the person or persons making them. There was no objection by defendant to Evenson's testimony or to the admissibility of People's exhibits 1, 2, 3 and 4 at the conclusion of the cross-examination of Evenson or at any subsequent period of the trial.

It is a general rule in Illinois that where the party who makes entries in the due course of business is living and sane and not permanently out of the State, such entries must be proved by him to have been made and that they are correct and true entries before they can be admitted as evidence, as between third parties, as proof of the facts therein stated. 2 Jones on Evidence, sections 319, 320; People v. Geister, 289 Ill. 249, 124 N.E. 530; People v. Vammar 320 Ill. 287, 150 N.E. 628. By section 9 of article II of the constitution of 1870 it is provided that in all criminal prosecutions the accused shall have the right to meet the witnesses face to face.

Defendant, citing the above-mentioned general rule and constitutional provision, now contends the court erred in admitting Evenson's testimony with reference to the loss, the serial numbers given Evenson by the police officers and People's exhibits 1, 2, 3, and 4. He urges that this evidence was hearsay and incompetent, its admission improper and most prejudicial to the defendant. An examination of the record discloses, however, that there was no objection made to its introduction.

The function of the objection is, first, to signify there is an issue of law, and, secondly, to give notice of the terms of the issue. An objection to the admission of evidence, to be available, must be made in apt time, or it will be regarded as waived. The general rule is that the admission of incompetent evidence must be objected to, if at all, at the time of its admission. Objections to evidence should designate the particular testimony considered objectionable and point out the objectionable features complained of. Failure to make proper and timely objection to the admission of evidence claimed to be incompetent or otherwise objectionable or to move to strike it out after its admission, giving specific reason for the objection or motion to strike out such evidence generally constitutes a waiver of the right to object and cures the error, if any. Likewise, objection to the admission of...