WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
THOMAS E. KLUCZYNSKI, Judge, presiding.
MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 22, 1959.
Frank Pulaski, together with Leopold Olvera and Carl Vassallo, was indicted in January, 1956, in Cook County, on a charge of burglary. All pleaded not guilty, and Vassallo waived a jury trial. The three defendants were tried jointly, the jury finding Pulaski and Olvera guilty, and the court finding Vassallo guilty. The court entered judgment upon the verdicts and sentenced Pulaski to the Illinois State Penitentiary for a term of not less than ten years nor more than twenty years, Olvera for a term of five to twenty years, and Vassallo for a term of one to seven years. Frank Pulaski now brings this writ of error to review his conviction and sentence.
After waiver of jury trial by Vassallo, defendants Pulaski and Olvera moved for trial separate from Vassallo, on the ground that a bench trial of Vassallo simultaneous with their trial by jury would be prejudicial to them. Their motion was denied and the trial proceeded jointly, with a jury selected to try Pulaski and Olvera.
The record discloses that at about the hour of 4:00 A.M. on November 13, 1955, police officers Parker and Johnson responded to a radio call reporting a burglary in progress in the vicinity of Twenty-first and Laflin streets in Chicago. As the officers approached the scene they saw a car speed away without lights, and three men, who proved to be Pulaski, Olvera, and Vassallo, emerge from a doorway of the Edelweiss Brewery with a light. As these men ran toward the officers, Parker saw them drop a radio and a flashlight. The radio was later found to be tuned to police calls. The officers stopped the men, and directed them to raise their hands, whereupon it was discovered that they were each wearing gloves. Parker inquired what they were doing coming out of the brewery. Vassallo denied they had been inside. However, as officer Johnson moved closer with his drawn gun, Pulaski said, "Yeah, yeah, don't shoot."
Officer Parker entered the brewery and found a safe on its side with the back torn open, and a walk-in safe which had been forced open. He saw a bag about three and one-half feet from one of the safes, containing a crowbar and a drill about three feet long.
Frederick Von Altmann, the night watchman at the brewery, testified that while making his rounds about 4:15 A.M. on November 13, 1955, he heard voices, saw the bag and drill on the floor and the office vault open with Christmas presents scattered about. He called the police. He also heard footsteps run past on the street and on looking out saw three men run right into the police. He also heard an automobile drive away when he heard the running footsteps.
Police officer O'Connor testified that he and officer Lawler drove the defendants to the police station in a squadrol, and that they all wore gloves when they entered the squadrol, but upon reaching the station they were no longer wearing gloves, although he did not see them remove the gloves.
Officer Lawler said he found two pairs of gloves in the squadrol after taking the prisoners into the station. Officer Hensen searched the prisoners at the station and found a pair of gloves in Vassallo's rear pocket and a lighter in Vassallo's front shirt pocket.
August C. Gomer, sales manager of the brewery company, whose office was on the second floor of the building, identified the lighter taken from Olvera as belonging to him. The general manager of the brewery, Charles W. Broughton, testified that the two safes were open and tampered with, and that a number of Christmas gifts and twelve to thirteen thousand dollars were removed.
The flashlight was never found, although the street near the brewery was later searched.
Officer Hensen testified that, in the presence of all three defendants and officers Larsen and Clark, he asked each defendant if he was in the premises of the brewery and asked Pulaski about the cigarette lighter, but none of the questions were answered. upon the completion of Hensen's entire testimony plaintiff in error interposed an objection to the testimony regarding the silence of the defendants, and moved to strike such testimony and to declare a mistrial. The objection and motions were overruled.
Police officer Young investigated for latent fingerprints at the scene, but found none. He did find fabric marks on the window sill and on the safe. He took filings from the floor below the walk-in safe, some insulation and a piece of drill. Eugene Mayer and Daniel Jackson vacuummed the defendants' clothing. Claude Hazen, of the Crime Detection Laboratory, found the material vacuummed from the defendants' clothing to be similar to the safe insulation, which was cement and a silica product.
Defendant Olvera testified that he, Vassallo, and Pulaski went to a tavern at Twenty-second and Ashland in Chicago to meet one Robert Newman, who was to tell them where a dice game was to be held. Newman, who was not produced as a witness, was not there but they were told to go to Twenty-first Street, three blocks east of Laflin. As they walked down Laflin, he said they saw two men run from the Edelweiss Brewery to a car and drive off, and he saw them drop something. As they approached the brewery door Vassallo knelt and picked up something, then a squad car came around the corner and stopped, and the police arrested them. He denied he had been in the brewery. On cross-examination he said ...