WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
CHARLES E. BYRNE, Judge, presiding.
Rehearing denied March 13, 1950.
Plaintiffs in error, Fred Varela and Alphonso Najera, otherwise called Alphonso Alvarez, were jointly indicted in the criminal court of Cook County for the murder of Albert Brody. They entered a plea of not guilty and Varela entered a motion for a severance, which motion was overruled. Upon trial they were both found guilty of murder by a jury and sentenced to death. Motions for a new trial and in arrest of judgment were made and overruled, and judgment and sentence of death entered on the verdict.
Error is urged in four particulars: (1) The reception of the defendants' confessions violated the due-process clause of the Federal and State constitutions in that the evidence discloses the confessions were not voluntary. (2) Statements allegedly made by the defendants which implicated them in other crimes were improperly admitted in evidence. (3) Refusal of the court to grant a severance. (4) The court gave improper instructions for the People.
The evidence discloses that on the morning of April 12, 1948, around 6:00 A.M., the body of Albert Brody, a taxicab driver, was found lying between the sidewalk and the street, near 114th Street, in the city of Chicago, adjacent to Trumbull Park. Five empty cartridges of a type used in an automatic pistol were found near his body. He had been shot in the head four times and once in the left hand. Later his cab was found by the police, unoccupied, on Houston Avenue, between Ninety-fifth and Ninety-sixth Streets. It was examined for fingerprints, one being found on the door of the cab and one on the rear-view mirror above the front seat. Brody's wallet was found empty, sticking out of a pocket in his jacket. A "Longines" wristwatch, made of yellow gold, with a yellow gold band of fine mesh, was missing from the body. The fingerprints found on the door and rear-view mirror were compared with those of various persons by the Police Bureau of Identification and the one taken from the rear-view mirror was found to correspond with the print of the defendant Najera. Investigation revealed that Najera had left Chicago with the defendant Varela, and a Federal warrant was obtained for the arrest of Najera under the Federal Flight Statute. (U.S.C. Title 18, chap. 49, sec. 1073.) Officers of the Federal Bureau of Investigation located Najera and Varela at the home of Najera's relatives in Sequin, Texas, where both were taken into custody on April 29, 1948. They were taken to San Antonio, Texas, where Najera was arraigned before a United States Commissioner and remanded to the county jail on default of bond. Varela was turned over to the San Antonio police. On May 4, 1948, the defendants were indicted for murder in the criminal court of Cook County and proceedings were completed to extradite them from Texas. On May 14, officers John P. Kelly and Raymond Lamb of the police department of Chicago, departed for San Antonio carrying extradition warrants for the defendants. They arrived in San Antonio on May 15. On May 19 they took custody of the defendants and departed for Chicago about noon. They arrived in Chicago on May 20, around 11:30 P.M. During the time the defendants were confined in Texas they were questioned by F.B.I. agents, but made no admissions of guilt, Najera stating that on the night of the murder he was drunk and had no memory of what he did. During the time the defendants were in jail in San Antonio they were visited by various relatives, including Varela's mother. There is no claim that they suffered any mistreatment in Texas. On the arrival of the officers from Chicago, they also questioned defendants, but obtained no admissions of guilt. The defendants were brought from Texas by the officers, handcuffed and with leg irons. The party traveled in a compartment where they were provided with meals and the defendants occupied beds during the night. The officers sat up. There is no claim that the defendants were mistreated on the train or questioned, although the handcuffs and leg irons were left on them during the entire trip. The train arrived in Chicago about 11:30 P.M. and the party was met by other officers and the defendants were taken to the Bureau of Identification where their pictures were taken and other data recorded. They were taken next to the Ninth District police station, arriving there around 1:30 A.M. on the morning of May 21. They were then separated and questioned intermittently. During this period defendants repeatedly stated they did not want to make a statement and wanted to see their people, a lawyer or someone. About 4:00 A.M., Najera, being confronted with the fingerprint and other evidence of his guilt, admitted that he killed Brody and that he had given the gun to his brother, Benito. He was then taken to a telephone where he called Benito and talked to him, after which he stated that Benito did not have the gun any longer. The next morning defendants were taken to the State's Attorney's office in the Criminal Courts Building, arriving there around 9:30 A.M., where they were questioned by the Assistant State's Attorney. During the morning Varela's parents, accompanied by a woman, were permitted to see him. After that, around 11:30 A.M., a reporter was called in and took down questions and answers to and by Varela, in which he admitted he was with Najera when the crime was committed. Thereafter, around 11:40 P.M., Najera made a confession which was taken down by a reporter. He stated that on the night of April 11, 1948, he and Varela went to a dance at Our Lady of Guadalupe Church at Ninety-first and Brandon in Chicago; that they left there after about an hour and a half and went to the Balboa tavern at Eleventh and Halsted, where Varela's father worked as a muscian; that they arrived at the tavern about midnight and stayed there for some time; that they left intending to take a streetcar home, but as they walked away they decided to take a taxicab; that they hailed a cab and told the driver to take them to 1013 South Blue Island, where Najera's mother-in-law lived; that as they approached that point, they drew guns and asked the driver, "You know what this is?" They then put the driver in the back seat with Varela, and Najera drove the cab down Roosevelt Road to the outer drive and south on it to South Chicago; that Varela told him to find a dark spot and he drove over various streets to a place alongside what appeared to be a park, where he stopped the cab on the wrong side of the street, facing south; that they then all got out on the left side of the cab and Varela said he might as well not be identified because he had 17 years to do and said his gun would not go off; that Najera then took the gun, a .32 automatic, cocked it and shot the driver four or five times; that he and Valera then got back into the cab and drove it to Houston street, where they got out and wiped the cab to remove fingerprints and abandoned it; that after they left the cab Varela told him he had taken the cab driver's wristwatch; that thereafter they decided to go to Texas and left Chicago on the morning of April 13, taking Irene Castillo with them as far as East St. Louis, where she left them and he and Varela continued on to Texas; that Varela had the wristwatch with him on the trip and, some days after they arrived in San Antonio, they were in a tavern and Varela ran out of money; that some girls were with them in the tavern, one of whom was named Lily, who was a cousin of Varela's; that Varela pawned the wristwatch with the tavern keeper for $10; that about two weeks later they were arrested in Sequin at the home of some of his relatives.
The confession was transcribed and, in the presence of both defendants, was read aloud. Najera made various corrections in the transcript and initialed them and then signed the written confession. Varela, who was present, was asked to sign it and refused, saying his mother told him they had hired a lawyer and for him not to sign any statements. He was asked if what had been read aloud and what Najera had signed was true and he said it was true.
Much controversy is raised as to whether defendants were taken before a magistrate for arraignment on May 21, as contended by the People and shown by the record. The record discloses that on May 21, Fred Varela and Alphonso Najera were brought before the court and the cause was continued until May 24. On May 22 counsel for defendants entered their appearance, the defendants being arraigned on Monday, May 24, 1948.
On the trial, defendants claimed the confessions were inadmissible and, on preliminary hearing out of the presence of the jury, defendants testified that they were beaten by the police, left in shackles during the whole period of questioning and were denied food and water until after they had confessed. They did not identify anyone as having beaten them and no evidence was offered showing any marks or bruises on their bodies at the time as a result of such beating. Police officers testified they were not beaten and that food and water was available to them. Najera denied any recollection of signing a confession but admitted the signature and corrections were his. Varela denied ever having joined in the confession. The court, after hearing all of this evidence, overruled the motion to exclude the confessions and admitted them into evidence.
On the trial before the jury, Varela did not testify, but Najera repeated his testimony that the confessions were coerced and police witnesses denied this testimony.
Before the jury, Irene Castillo testified that she had accompanied defendants from Chicago to East St. Louis on April 13; that she stayed all night with Varela in a hotel room there, and that he told her to go back to Chicago because he and his friend were on the run.
Lily Molina, a cousin of Varela's, testified she was in a tavern in San Antonio with defendants during April, 1948; that Varela asked her to arrange for him to pawn a wristwatch; that the watch was square, yellow gold and had a fine gold mesh band; that she arranged the pawn with Inez Mendez, who operated the tavern.
Inez Mendez testified she loaned Varela $10 on such a watch on that occasion. Neither of them knew the trade name of the watch pawned. Inez Mendez testified Varela's mother redeemed the watch from her. Varela's mother admitted redeeming the watch, but stated the watch she redeemed was a "Bulova."
Defendants' evidence in defense of the charge consisted chiefly of testimony of various witnesses tending to establish an alibi. Since the defendants do not controvert the finding of the jury on the evidence, it is unnecessary to detail such testimony. The People introduced evidence that Najera, while confined in the Cook County jail on September 18, 1948, participated with two other persons in a jail break. He was rearrested and returned the following day.
The first and principal contention of defendants is that the admission into evidence of their confessions constitutes reversible error. On objection to admission of the confessions into evidence by defendants, a preliminary hearing was held out of the presence of the jury, on the question of their voluntary character. The question of fact was presented as to whether or not physical violence was used. The evidence in that respect being in conflict, it presented a question of fact as to whether the confessions were voluntary. The only evidence of physical mistreatment is in the testimony of defendants themselves, there being no evidence of marks or ...