WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
WILBERT F. CROWLEY, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
This is a writ of error to the criminal court of Cook County, seeking a reversal of a judgment sentencing defendant Paul Temple to the Illinois State Penitentiary for the crime of conspiracy for a term of not less than one nor more than four years, and of a judgment sentencing defendant William L. McFarling to the Illinois State Penitentiary for conspiracy for a term of not less than one year nor more than one year and one day. These judgments against the defendants were entered upon their respective pleas of guilty.
The indictment, returned November 3, 1950, charged the defendants together with Carl A. Barrett, E.L. Marks and John Doolin as follows: "The Grand Jurors, chosen, selected and sworn, in and for the County of Cook, in the State of Illinois, in the name and by the authority of the People of the State of Illinois upon their oaths present that one Paul Temple, one W.L. McFarling whose first name in unknown to said Grand Jurors, one John R. Doolin, one Carl A. Barrett and one E.L. Marks whose first name is unknown to said Grand Jurors late of the County of Cook, on the ninth day of May in the year of our Lord one thousand nine hundred and forty nine in said County of Cook, in the State of Illinois aforesaid, unlawfully, willfully and deceitfully conspired, combined, confederated and agreed together with each other and with divers other persons whose names are unknown to said Grand Jurors, unlawfully and wilfully to cheat and defraud United States Mutual Insurance Company, a corporation, of a large amount of money, personal goods and property, to wit: two hundred seventeen thousand five hundred dollars in money, of the value of two hundred seventeen thousand five hundred dollars lawful money of the United States of America, the money, personal goods and property of said United States Mutual Insurance Company; contrary to the Law, and against the peace and dignity of the same People of the State of Illinois."
The defendant John Doolin pleaded guilty and was placed on probation. Defendants Carl A. Barrett and E.L. Marks were placed on trial before Judge Wilbert F. Crowley with a jury on the aforesaid indictment. At the close of the People's case, by agreement of counsel, the jury was instructed to find the defendant Evelyn Marks not guilty. The jury found defendant Carl A. Barrett guilty of conspiracy and fixed his punishment at a fine of $2000, and judgment was entered thereon in accordance therewith. A hearing was had before Judge Crowley on the respective pleas of guilty of defendants Temple and McFarling. At the time of their pleas the defendants were duly warned as to their constitutional rights and the consequences of their pleas. It was stipulated that the evidence and testimony in the case of The People of the State of Illinois v. Carl A. Barrett and E.L. Marks, wherein Temple and McFarling testified for the prosecution, would stand as the evidence and testimony on their pleas of guilty in the case of The People of the State of Illinois v. Paul Temple and William L. McFarling.
On June 5, 1952, a hearing was had before Judge Crowley on pleas of guilty and applications for probation of the defendants. Both Temple and McFarling had been helpful to the State in procuring an indictment against and in the conviction of Barrett. They expected and claimed they were promised leniency for this co-operation. Suffice it to say at this point, without indulging in the details, that there was considerable confusion and very much of a conflict in the interpretation of the agreements made between counsel for defendants and the State's Attorney's office. The defendants' applications for probation were denied, and they were each given the maximum punishment under the statute, namely, one to five years in the Illinois Penitentiary and a $2000 fine.
Only superficially is it necessary to detail the offense underlying the conspiracy prosecution. It is alleged that the United States Mutual Insurance Company was cheated and defrauded of a large sum of money, namely, $217,500. It appears that Barrett was the major swindler, he having profited to the extent of $200,000. Temple received about $25,000 which it was claimed was the commission due him from the transaction. McFarling received a much smaller sum of money which covered services rendered and expenses.
The State's Attorney's office was naturally very much interested in the prosecution of the wrongdoers. It is undisputed that the State could not have procured the indictment in this case without the appearance of Temple and McFarling before the grand jury. It likewise clearly appears that the State would have been helpless in the trial and conviction of Barrett without the testimony of the defendants. There is no question but what the State's Attorney's office did interview the defendants and their counsel and did give them some assurances of a measure of leniency in consideration of their assistance. George F. Callaghan, who represented the defendants in support of their motion to vacate the judgment, in addressing the court, had this to say: "I say again, there is a dispute about this; that in the presence of the two defendants, in the presence of Mr. Burns, in the presence of Dick Gallagher, and I believe Mr. Kuh was still there he excused himself at one time during the meeting and said he had to go to the front office to see whether it was all right for them to testify, and whether this happened in the time he was gone I am not too sure. I said to Temple and McFarling in the presence of these gentlemen I have named: `Now, you men understand the circumstances under which you are to testify before the Grand Jury, do you? If you don't, I am going to make it very clear to you so that there may never be any misunderstanding about it. If you men testify before the Grand Jury you cannot be left out of the indictment.' I had asked they be left out of it, but the State told me they would have to be included in the indictment. `You cannot be left out of the indictment in this case. However, when the cases come on for trial you will be granted a severance; you will testify as witnesses for the State, and you will not thereafter be prosecuted.'
"When I made that remark Mr. Burns said, `You ought not to have said that in front of all these people because it will be said that these men might be cross-examined, and if something is said we would rather not have it said in the presence of everyone.' I said, `I will take them across the hall and explain it to them in detail.' I took them across to Mr. Blattberg's office and explained it in the most intimate detail.
"Within several minutes after that, Mr. Kuh came back to the office and said, "It is OK for them to testify. I have been to the front office.' Now, what went on in the front office I don't know."
The record bears out the accuracy of each of the foregoing statements. Let us consider the significance of the admonition of Burns. The testimony of an accomplice is scrutinized most carefully. An accomplice is frequently asked if his testimony is not given in consideration of promises of leniency. It is only fair to observe that Burns was simply exhibiting a measure of caution that too much publicity be not given the deal that was being made with the defendants.
Callaghan further indicated to the court that the first intimation that he had of a repudiation of the agreement came from Gallagher, an assistant State's Attorney, when this case was assigned for trial in the court room of Judge Kluczynski, and Gallagher informed Callaghan that he was not longer in charge of the case and that it was now assigned to Clem Cody. Callaghan said, "I hope you pass on to your successor the fact that we had a deal in this case" and Gallagher replied, "I don't know what you are talking about. We had no deal." Immediately, thereupon, Callaghan spoke to State's Attorney Boyle with reference to filing a plea in bar, and according to Callaghan, Boyle felt that a plea in bar might be sustained but suggested that Callaghan look at it in a practical way since three persons would testify that there was no deal and Callaghan was the only person who would testify to a deal. Thereupon, according to Callaghan, the following conversation took place between Boyle and Callaghan:
"`Why don't you enter a plea of guilty to the conspiracy count and we will dismiss all of the other indictment.' I said, `That leaves me in a position where I am back again where we started from. The immunity we thought we had is gone, and I will be in the position of causing these defendants to testify for the State simply upon a statement to the Court afterward that they are entitled to the utmost consideration.' He said, `will do more than that.' Now, the `more than that' has never been done. `More than that' has a connotation to me as a lawyer, and the `more than that' Your Honor must understand, of course, because you for a long period of time were the First Assistant State's Attorney here and probably in many circumstances dealt with lawyers for defendants who were going to testify for the State, and `I will do more than that' means to me that these men could reasonably expect, at the very worst, probation in this case if they testified for the State."
This colloquy then took place:
"Mr. Callaghan: Does your Honor know, had we tried this case these defendants would have been entitled to a directed verdict on a variance in this case, and now they stand convicted and sentenced to one to five. The proof in this case was that checks were received, whereas the charge in the indictment was conspiracy to defraud the United States Mutual ...