WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
RICHARD B. AUSTIN, Judge, presiding.
MR. CHIEF JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:
The plaintiff in error, Alfonse Bartkus, herein called defendant, was convicted in the criminal court of Cook County of armed robbery and sentenced to from 25 years to life imprisonment. He was also convicted on an habitual count, which charged a prior armed robbery conviction, and sentenced to life imprisonment.
The defendant was indicted, along with Joseph Cosentino and James Brindis, for robbery, while armed, of an officer of a savings and loan association in Cicero. Cosentino and Brindis pleaded guilty and testified for the prosecution. Prior to the instant trial, the defendant had been tried in a Federal court for violation of the Federal bank robbery statute, but was acquitted.
In support of this writ of error, the defendant contends that the trial court erred in the following particulars: (1) failing to sustain his plea of double jeopardy, to allow discharge on grounds of res judicata, and to permit evidence of the prior Federal acquittal; (2) admitting evidence of three previous convictions; (3) permitting a verdict to stand when the proof shows the defendant was not proved guilty beyond a reasonable doubt; (4) erroneously instructing the jury; and (5) sentencing under both the armed robbery count and the habitual criminal count.
First, the defendant argues that his prior Federal court acquittal of the charge of robbing a Federal bank (insured) bars his prosecution for armed robbery of the same institution, and in any event, it was error not to permit the introduction in the instant case of the fact of the prior acquittal.
There is a conclusive answer to this contention in the decided cases, beginning with the early case of Moore v. Illinois, 14 How. 13, 55 U.S. 13. In explaining that by a single act one may commit an offense against both the Federal government and a State government, for which separate punishments may be inflicted, the court said: "Every citizen of the United States is also a citizen of a State or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offence or transgression of the laws of both * * * it cannot be truly averred that the offender has been twice punished for the same offence; but only that by one act he has committed two offences, for each of which he is justly punishable." To like effect are Sexton v. California, 189 U.S. 319; United States v. Lanza, 260 U.S. 377, and Herbert v. Louisiana, 272 U.S. 312. We reaffirmed this principle in the recent case of People v. Hammond, 1 Ill.2d 65. See also State v. Moore, 143 Iowa, 240, 14 I.L.P., Criminal Law, sec. 97, and 15 Am. Jur., Criminal Law, sec. 394.
Moreover, the court did not err in precluding evidence of the prior Federal acquittal. It follows, from the foregoing reasoning, that such evidence was irrelevant, since proof of Federal acquittal could not bar State conviction. And the issue here of former jeopardy was a question of law for the court, no question of fact for the jury being involved. Cf. People v. Simos, 345 Ill. 226, 230.
Second, the defendant argues that it was error to admit evidence of three previous convictions. However, the proof of the prior convictions, established by stipulation, was admissible to attack the credibility of the defendant as a witness. People v. Del Prete, 395 Ill. 110, 116.
Defendant's third contention raises a question as to the sufficiency of the evidence and necessitates a consideration of the proof adduced at the trial.
Joseph Cosentino and James Brindis, each of whom confessed and pleaded guilty to the crime charged, testified to the following: On July 27, 1953, at about 4 P.M., they went with the defendant in a car driven by him to a point near the General Savings & Loan Association in Cicero, for the purpose of robbing that institution. The defendant remained in the car, stating that the police had his picture on file. His companions went in, each carrying a gun wrapped in a newspaper. Pulling their guns on Harold Pinkert, president of the loan company, they were able to make off with $3750. After they left the building, they ran through an alley, got into the car with the defendant, and drove to Chicago where the money was divided equally among the three.
Harold Pinkert, the loan company president, testified that he was able to get the license number of the get-away car, Illinois No. 1-101-556. In addition, he said that the third party in the car was about 5 feet 6 inches tall, weighed about 145 pounds, was about 30 years old, and, judging from the profile he saw, was a "thin, fair faced" man.
It was stipulated that the defendant was the owner of a 1953, light gray, two-door Ford, bearing the license number seen by Pinkert, and that the defendant was driving this car during the month of July, 1953, and particularly on July 26 and 27. Exhibits showing automobile license records further identified the defendant as the owner in April, 1953.
The State also called Grant Pursell, who had been in the Chicago Federal lockup when the defendant was there and who testified as follows: "I asked him [the defendant] why he was there and he said for bank robbery. * * * He said he drove the car * * * he stayed in the car * * * he just got away * * * a loan association or something like that, it was a bank, yes, that's what he did say. He said it was located in Cicero * * * there was some conversation concerning money, but I couldn't say how much. * * * He said they got away with the money. From the bank. * * * He said that there was a fourth man who was arrested but that he did not have anything to do with the robbery."
A stipulation that the defendant had been convicted of armed robbery in 1948, as alleged in the indictment, ...