Shelton v. Barry

• Decision Date: 24 April 1946
• Docket Number: Gen. No. 43438.
• Citation: 66 N.E.2d 697,328 Ill.App. 497
• Parties: SHELTON et al. v. BARRY et al.
• Court: United States Appellate Court of Illinois

328 Ill.App. 497

66 N.E.2d 697

SHELTON et al.

v.BARRY et al.

Gen. No. 43438.

Appellate Court of Illinois, First District, Third Division.

April 24, 1946.

Appeal from Superior Court, Cook County; John J. Wallace, Judge.

Action for malicious prosecution and false imprisonment by James Shelton and Lois Blanks against James Barry and Edward Simon and others.From the judgment, the named defendants appeal.

Reversed and remanded.Barnet Hodes, CorporationCounsel of Chicago (J. Herzl Segal and Sydney R. Drebin, both of Chicago, of counsel), for appellants.

William H. Temple, of Chicago, for appellees.

BURKE, Justice.

James Shelton and Lois Blanks filed a two count complaint in the Superior Court of Cook County against Marvin N. Stone, James Barry, William J. O'Neill and Edward Simon.The first count charged the defendants with malicious prosecution and false imprisonment of Lois Blanks.The second count charged the defendants with false imprisonment of James Shelton.Both counts charged that the acts complained of were deliberate, willful and malicious.Issue was joined.O'Neill was in the Army at the time of the trial and plaintiffs dismissed the case as to him.The court directed a verdict in favor of Marvin Stone.Separate verdicts were returned for James Shelton and against Barry for $750, for Shelton and against Simon for $750, for Lois Blanks and against Barry for $1,000 and for her and against Simon for $1,000.Motions by defendants for directed verdicts, for judgment notwithstanding the verdicts, for new trials and in arrest of judgment, were denied.On a remittitur of $500 by James Shelton and Lois Blanks as to each of the verdicts, separate judgments were rendered for Shelton and against Barry for $250, for Shelton and against Simon for $250, for Lois Blanks and against Barry for $500 and for her and against Simon for $500, to reverse which this appeal is prosecuted.

On Sunday, September 1, 1940 the apartment of Marvin N. Stone and family, located on the third floor at 6917 Oglesby Avenue, Chicago, was burglarized.The loot included a siver fox fur jacket, a movie camera and projector, several pieces of jewelry, including a diamond bracelet and diamond pin, several articles of lingerie, all new, some bottles of perfume, $29 in currency, a pair of men's diamond cuff links and a diamond stick pin, the aggregate value being $1,653.30.Lois Blanks came to Chicago in June, 1939.From October, 1939 to September 7, 1940she was employed by the Stones as a maid.She lived at the Stone apartment.She was allowed to be off one half day every Thursday and every other Sunday.She rented a room from a cousin, Mrs. Alma Parker, at 5525 South Wabash Avenue, Chicago, where she stayed on her days off.The Stone family consisted of Mr. and Mrs. Stone, their two children, then six and eight years of age, his mother-in-law Mrs. Massover, and his brother-in-law Joseph Massover.Lois Blanks had a key to the front door of the apartment.Mr. and Mrs. Stone each had a key to the apartment, as did Mrs. Massover and her son.The Stones moved into the apartment in May, 1940.The people who vacated the apartment at the time the Stones moved in, turned the keys over to them.The locks then on the doors were not changed.On September 1, 1940 the Stones left the premises at about 2 p. m. It was Miss Blanks' day off.She was then alone in the apartment.She had a key only to the front door.She saw the Stones lock the back door before they went out.Outside of the back door there was a porch door, which could be unlocked from the inside.She left the Stone apartment between 2:15 and 2:30 p. m. She left by the front door and locked it.She went to the room she maintained at her cousin's house.When Mr. Stone returned with his family at about 5:30 that afternoon, he opened the front door with his key.He did not notice anything unusual until he walked to the rear, when he saw the back and porch doors ajar.It became apparent that the premises had been burglarized and the police were notified.

Sergeant John N. Noonan, in charge of detectives and criminal investigation at the Woodlawn Station, assigned officers O'Neill, Barry and Simon to the case.They went to the apartment and talked to Mr. Stone.They ascertained that there were no scratches on the doors, that the locks were in perfect condition, that there were no marks on the doors, and concluded that the doors had not been jimmied and that the intruder gained entrance by the use of a key.Mr. Stone took the officers through the apartment, starting with his wife's bedroom.It was a large room.In it was the bed, a dresser, with eight drawers, a chiffonier and a dressing table.He explained that in this room only two drawers had been disturbed.In one of these drawers there was some wearing apparel of Mrs. Stone, lingerie articles that she wore from day to day, and $29 in currency.This was concealed under the lingerie, as was the jewelry.The only articles taken from this drawer were the $29 in currency and three or four pieces of jewelry.In the drawer below this, Mrs. Stone had a supply of new lingerie that had never been laundered and several dozen pairs of silk hose that had never been worn.All these were missing, as were several unopened bottles of perfume.On the dressing table, undisturbed, were several bottles of perfume that had been opened.In the room occupied by Mrs. Stone's mother nothing had been taken.He then took the officers into his bedroom.Here only one drawer in the dresser had been disturbed and that was the drawer where he kept his jewelry box which had some diamond cuff links and a diamond stick pin.These were the only articles taken from this drawer.In a closet in the corner of the room, several articles of clothing were hanging, and upon a shelf of the closet he kept a movie camera and projector.The movie camera and projector, with the articles of jewelry, were the only things taken from his bedroom.Then he took them to a closet where his wife kept her furs.This closet had two locks on it.A hold had been drilled (by the intruder) through the door of this closet and the lock jimmied off.A silver fox jacket was taken from this closet.Only the rooms of Mr. and Mrs. Stone and the fur closet had been disturbed.

Miss Blanks kept company with James Shelton.On that Sunday afternoon Miss Blanks remained at Mrs. Parker's house until Mr. Shelton called for her.They attended the theater.He then escorted her to her room in Mrs. Parker's house.Mrs. Parker then informed her of the burglary.Two men, not identified, had searched Miss Blanks' room while she was absent, at which time they informed Mrs. Parker of the burglary.Miss Blanks remained there overnight and reported for work at the Stone apartment at about 7:30 Monday morning, as she had been in the habit of doing.She continued as a maid in the Stone apartment until Saturday, September 7, 1940.

Sergeant Noonan did not go to the premises.He had charge of the investigation of the burglary.It appears that Anthony Favorulo, an investigator employed by a detective agency, was investigating the case for an insurance company.On Saturday, September 7, 1940 Barry, Simon and O'Neill, while patrolling in a police car, received radio instructions to report to the station.Barry was in charge of the squad.Favorulo and Sergeant Noonan were conversing.Favorulo showed Barry a report of his investigation of the Stone burglary.The report was not introduced, nor was any testimony given as to its contents.Barry testified that after reading the report, which he described as ‘very thorough, complete,’ Sergeant Noonan ordered his squad to arrest Lois Blanks, James Shelton and Thomas Ewing.They went to the Stone apartment and arrested Lois Blanks at about 1:30 p. m. Saturday, September 7, 1940.She denied participation in the burglary, or of knowing anything about it.Simon remained in the squad car.Miss Blanks was then taken to the Woodlawn Police Station, where she was interrogated.She admitted that she knew James Shelton and also that she knew Thomas Ewing.The latter had served a term in a penitentiary.

After questioning Miss Blanks the officers arrested James Shelton and Thomas Ewing.They brought these prisoners to the station for questioning.They denied being in any way implicated in the Stone burglary.After Miss Blanks was interrogated she was told to remain behind the desk with the sergeant. She was then taken to the police headquarters at 11th and State Streets and finger-printed.She was placed in a cell there until Sunday morning, when she was taken back to the Woodlawn station.On Sunday afternoon she was taken to the ‘show-up’ at the police headquarters.She did not know the policemen who took her back and forth between Woodlawn station and police headquarters.On Monday, September 9, 1940James Barry signed a complaint charging Lois Blanks with violating a city ordinance commonly called ‘disorderly conduct.’She was specifically charged with making or aiding in making ‘an improper noise, riot, disturbance, breach of peace, or diversion tending to a breach of the peace, within the limits of the City’, on September 9, 1940.She was immediately released on a $25 cash bond.She appeared in the Municipal Court on the following day, where she was found not guilty, and discharged.It is undisputed that she was in the custody of the police at the time she was charged with committing disorderly conduct and that she did not commit disorderly conduct.She had not previously been arrested or in jail.

James Shelton owned and operated a rooming house of 80 rooms at 4714 South Park Avenue, Chicago.On Saturday, September 7, 1940, as he was returning to his rooming house, he was taken into custody by Officers Barry, O'Neill and Simon, who were accompanied by Favorulo.They brought him to the Woodlawn Police station, where he was questioned.He admitted that he knew Miss Blanks.He was then taken...