People v. Witt

• Decision Date: 20 December 1928
• Docket Number: No. 19133.,19133.
• Citation: 164 N.E. 682,333 Ill. 258
• Parties: PEOPLE v. WITT et al.
• Court: Illinois Supreme Court

333 Ill. 258

164 N.E. 682

PEOPLE

v.WITT et al.

No. 19133.

Supreme Court of Illinois.

Dec. 20, 1928.

Error to Criminal Court, Cook County; Joseph B. David, Judge.

Harold Witt and another were convicted of robbery while armed with guns, and they bring error.

Affirmed.

James Hartnett, Thomas D. Nash, and Michael J. Ahern, all of Chicago, for plaintiffs in error.

Oscar E. Carlstrom, Atty. Gen., Robert E. Crowe, State's Atty., and G. E. Nelson, of Springfield (Edward E. Wilson and John Holman, both of Chicago, of counsel), for the People.

STONE, J.

This cause is here by writ of error to review the judgment of the criminal court of Cook county entered on a verdict of the jury finding the plaintiffs in error, Harold Witt and Herbert Deinert, guilty of robbery of the Bryn Mawr State Bank, in the city of Chicago, on December 9, 1924, while armed with guns. The indictment was laid under the Habitual Criminal Statute (Smith-Hurd Rev. St. 1927, c. 38, §§ 602-608), and the plaintiffs in error were sentenced to the state penitentiary at Joliet for the term of their natural lives.

The robbery was perpetrated by four men armed with revolvers, who held up the bank officials and employés, forced them into a vault, compelled the opening of the compartment in which cash was kept, and took therefrom the sum of approximately $16,700. In March, 1926, Mario Chiostri and Walter Shoultens were tried on this charge and convicted. Their conviction was affirmed by this court in People v. Shoultens, 326 Ill. 263, 157 N. E. 210. The indictment in this case was returned November 23, 1927. Plaintiff in error Witt was positively identified by Allen D. Whitney, vice president of the bank, and by Claude Edward Rowe, cashier of the bank, as one of the men participating in the robbery. Whitney testified that he was opening his mail and his attention was drawn to loud talking, and he looked up and saw a man pointing a gun at him, who ordered him to hold up his hands; that he was told to go back into the vault; that as he passed the vault door he tried to throw the bolts, but one of the men thrust a gun against his side and told him to move along; that when he went into the vault Witt stood near him at the threshold or doorway of the vault, and witness had occasion and opportunity to see him; that he was standing close to Witt for approximately a minute or more while another of the men was getting the money; and that he later saw Witt at the Woodlawn police station and identified him. Daniel Carroll, a teller of the Bryn Mawr Bank, testified that four men entered the bank with guns; that plaintiff in error Deinert was one of them; that he was standing outside the witness' cage, about four to six feet from him, and told him to put up his hands; that he was commanded to walk backwards out of the cage and into the wault of the bank; that when the men came in the bank, one of them came to the cage near his window and asked to have a $5 bill changed; that Deinert was not the man who asked for the change of the $5 bill, but was the one who held the gun on him and told him to back out of the cage; that the man who asked for the change was Shoultens. He was positive in his identification of Deinert. Claude E. Rowe, cashier of the bank, testified that four men entered the bank with drawn guns and ordered him and others in the bank to hold up their hands. He identified both plaintiffs in error. Identification of these men was positive.

The defense was an alibi. On behalf of Witt, Martin Andrews and his wife testified that thety lived in Milwaukee, Wis., on the date of the robbery; that Witt was at their house about three weeks before Christmas in 1924; that Andrews was to give employment to Witt. These witnesses also testified that Witt came to their house on Sunday, the 7th of December, 1924, and was there on the 9th. Adolph J. Steike, an uncle of Witt, also testified that on the 7th of December Witt left the city to go to Milwaukee. Witt took the stand and denied any knowledge of the robbery, and testified that he was in Milwaukee at that time.

On behalf of Deinert, the testimony of Charles Dahl was offered to show that he had worked with Deinert for Armour & Co. in December, 1924; that he saw him at his home on the 14th or 15th of that month; and that he was then sick. It was sought to introduce in evidence a copy of a paper called The Armour Oval, for the purpose of showing that Deinert had returned to work there on January 8 after having recovered from illness. On objection this offer was refused. Ida Deinert, mother of Deinert, and Emil Deinert, his father, testified that Deinert was at home sick on December 6 and was ill for a period of ten days or two weeks, but that they had no doctor. Joseph McClure testified that he saw Deinert at his home a few days before Christmas, in 1924; that he was ill at that time and was sitting up in bed. Frank Smith also testified to the same effect. Deinert took the stand and testified that he was at home sick on the day of the robbery.

The only witnesses for Deinert who testified that he was at home on December 9, the date of the robbery, were his parents. The other witnesses do not cover that particular day. On the other hand, both he and Witt are positively identified by two witnesses as having participated in the robbery.The issue of fact was one for the jury, and we would not be justified in disturbing their verdict on this record.

Prior to the commencement of the trial, Witt moved to be discharged because he was not tried within four months after his arrest and commitment to jail on the charge. He filed a motion setting out that he was arrested on the 8th day of June, 1926, and committed to jail on June 20 thereafter; that six different indictments had been returned at different times against him, one on October 15, 1926, one on July 1, 1927, one on November 4, 1927, one on November 10, 1927, one on November 16, 1927, and the one on which he was tried, returned on November 23, 1927, and that all these indictments charged the same offense. He sets up in his motion that he was in the house of correction up to December 6, 1926; that he was in the county jail on this charge from the latter date until the time of the trial; that at the April term, 1927, he filed a motion to be discharged because four terms of court had passed between December, 1926, and April, 1927, and that he had not been tried. The motion filed in this cause sets out that at the April, 1927, term the court overruled his motion to be discharged and that time was given in which to file a bill of exceptions. The motion recites that the bill of exceptions was presented, signed, and filed in that case, and that copies are appended to the motion in the present case to show that fact. The abstract in ths case does not show that the bill of exceptions, excepting to the ruling of the court in April, 1927, denying the motion to be discharged, was presented, signed, and filed. The motion in this case also tenders the record of the indictment at that time pending against Witt, known as indictment 41494, returned October 15, 1926, and the proceedings thereon. Apparently the trial court in this case had that record before it in passing on the second motion. That record discloses that the continuances from December, 1926, to April, 1927, were had on motion of the defendants, and while Witt testified that he did not make such motion and had no counsel, the record in that case cannot be impeached in such a manner. It is evident that all the indictments returned against Witt charged this one crime, and no explanation is made concerning any necessity for the return of so many indictments on a single charge, nor is there any showing that...