WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
WENDELL E. GREEN, Judge, presiding.
MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 24, 1958.
Joseph Sustak, defendant, was indicted in Cook County, along with Charles Struhart, for the murder of Jack Hendrix. Sustak was tried alone and the jury returned a verdict of guilty, fixing his punishment at life imprisonment. Defendant now prosecutes this writ of error to review the judgment entered upon the jury verdict.
It appears from the record that the deceased, Jack Hendrix, along with Luther Bradley, Frank Chapman, and James Mitchell dined together on the evening of February 4, 1953, each having three or four bottles of beer during dinner. After dinner they played pool and then drove in Mitchell's car to Roy's Tavern at 1903 Blue Island Avenue, in the city of Chicago. Hendrix, Bradley, and Chapman each had drinks at the tavern, and left there at about 12:00 P.M. or 12:15 A.M.
Upon leaving the tavern they proceeded to Mitchell's car, and were passed by two men, one of whom remarked that the South was taking over. Hendrix replied to them, and said that he didn't want any trouble. Other remarks were made and, when 25 or 30 feet away, the two men turned with guns in their hands. Bradley and Mitchell did not see the faces of the two men. Chapman, however, identified Sustak as one of the two men. As the two men approached the car, three or four shots were fired from their direction. Bradley received a wound in the right leg, Hendrix was shot in the left side, and Chapman was struck on the head with a gun.
Chapman testified that the man, whom he later learned was named Sustak, was wearing a coat or jacket and a hat or cap. He couldn't remember whether the coat or jacket was long or short, nor the color of the coat or the headgear. He stated that one of the men had dark skin, a mustache, and a beard. He first identified Sustak's picture as one of the assailants. He later saw and identified Sustak at Bridewell Hospital, although Sustak was then clean shaven. Chapman further stated that he knew Sustak fired one shot, but did not know what he hit.
At the time of this incident police officers Anthony Kasten and Thomas Barnes were at the Coral Inn tavern, at 1835 Blue Island Avenue in the city of Chicago, on police business. While in that place they heard several shots. They immediately went outside. They looked in the direction of the shots and saw two men running east. Kasten observed that one man was wearing a hat and the other was bareheaded, but both appeared to have on jackets.
The officers drove to the scene, observed the wounded men, and then proceeded eastward about four or five blocks, then one block south, and then westward. They had gone about two hundred feet west when they observed two men emerge from a passageway just west of Ed and Mary's Tavern at 1329 Cullerton Street. Kasten testified that both men wore jackets, one wore a hat and the other was bareheaded. Both officers yelled "Police" or "Halt, Police" but the men proceeded into Ed and Mary's. The officers followed them in, Barnes first, followed by Kasten.
Counsel for defendant offered to stipulate that the officers arrested Struhart and Sustak there, and objected to the showing of anything else that happened at that time. The court overruled the objection.
Officer Kasten, upon being called to the stand, came into court supported by two crutches, and dragged and hobbled to the witness box. Over objection he was permitted to testify that upon entering Ed and Mary's, he saw his partner struggling with a man holding a pistol. Kasten lunged for the gun and was shot in the left side. Kasten fired twice at the man, identified as Sustak, who then fired and struck Kasten in the left thigh, breaking the bone. The officer indicated the wound and described it as "through and through." He then heard shots from the rear of the tavern and was struck twice in the arm. He stated he was given a local anesthetic and a bullet was removed from just left of his lower spine by a Dr. Monroe. He testified that Barnes also was firing during the struggle and Sustak was shot several times. He observed that Sustak had a beard of one eighth to a quarter of an inch long.
Counsel for defendant then moved to withdraw a juror due to the prejudicial nature of the entrance and exit of officer Kasten on crutches, his description and indication of his wounds, and his general physical condition. The motion was overruled.
Officer Barnes, also over objection, testified to the details of the struggle in Ed and Mary's Tavern, the shots fired, and the wounds inflicted. After Sustak fell from his wounds, Struhart surrendered to Barnes. A box of cartridges fell out of Sustak's pocket. Barnes delivered Sustak's gun and the cartridges to the crime detection laboratory. At about 6:45 A.M. Barnes returned to the scene of the attack upon Hendrix and his associates. He found three cartridge shells there, which he delivered to the Crime Detection Laboratory.
Barnes also testified that Sustak had a little beard when he saw him at Ed and Mary's, but when he saw him next day at Bridewell Hospital, he appeared to have been shaved.
Police officer George Miller testified he discovered a bullet in a newsstand near the scene at the corner of Nineteenth and Blue Island.
John G. Sojak, a firearms identification technician for the Scientific Crime Detection Laboratory testified he examined the weapons, and made four test shots. From his tests and microscopic examination he determined that the bullet extracted from the newsstand, and the three spent ...