WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
GROVER C. NIEMEYER, Judge, presiding.
MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:
Defendant William Friedrich, together with Helen Compell, James Compell, Charles Fleck, James Lucania, James Montana and Theodore Zahler, was indicted by the grand jury of the criminal court of Cook County for the crime of conspiracy to fraudulently obtain the assets of the estate of one Frank Rozanski. Helen Compell and James Compell testified for the State and all of the other defendants obtained a severance from each other. Upon Friedrich's separate trial, the jury found him guilty and fixed his punishment at a fine of $2000. A writ of error has been issued to review the judgment of conviction. Several errors are assigned dealing with the sufficiency of the evidence, errors in the introduction of certain evidence, and procedural errors at the trial. In addition to these errors, Friedrich contends that he was deprived of his constitutional right to counsel of his own choice.
A detailed statement of the evidence is not necessary, but a general statement of the nature of the alleged conspiracy is necessary for a proper understanding of issues involved here. Frank Rozanski, whose estate the defendants allegedly conspired to obtain, died in 1954, leaving an estate of approximately $70,000. He had come to this country from Poland in 1910, leaving a wife and two children in Poland. Shortly after his arrival in this country, he met Valeria Ostrowski, who had a daughter, Helen, by a former marriage. Rozanski and Mrs. Ostrowski commenced living together, first in New York and then in Chicago. He never married Mrs. Ostrowski and never adopted Helen. Subsequently, the daughter married James Compell.
Defendant Friedrich, an attorney who practiced in Naperville, in Du Page County, first met Rozanski in about 1940. He knew of Rozanski's wife in Poland, for he obtained a divorce for Rozanski, divorcing him from this wife. He also knew that Rozanski had two children in Poland, but he was uncertain as to when Rozanski had told him of these children. He represented Rozanski in numerous legal matters, including several sales of real estate. In cases where the real estate was in Du Page County, Friedrich described Rozanski in the deeds as "divorced and not remarried," and where the real estate was in Cook County, Rozanski and Valeria were described as husband and wife. One of the real-estate transactions was a sale of Cook County property by Rozanski to Helen and James Compell. Rozanski told Friedrich at that time that he did not want Helen to know anything about the divorce proceeding. Friedrich then asked Rozanski about the two children in Poland, and Rozanski told him to forget about it, that the children were dead anyway.
The defendant Fleck was public administrator of Cook County, Zahler was an attorney employed in Fleck's office, and the defendant Montana was an assistant probate judge of Cook County. Briefly, it was the theory of the State that the defendants conspired to obtain Rozanski's estate by falsely claiming that Helen was Rozanski's actual daughter. It was claimed that the proceeds of the estate were to be split between the alleged conspirators. It was the State's theory that defendant Friedrich was involved in the conspiracy by reason of the fact that he knew from having represented Rozanski during his lifetime that Rozanski had children living in Poland, but that said defendant gave false testimony in a proof of heirship proceeding in Rozanski's estate, in which he testified that Rozanski always held Helen out as his actual daughter, and that Rozanski had never told him that he actually had any children born to him. It was the State's contention that by reason of this testimony, Friedrich's claim for legal services in the amount of $3,410 was allowed in the probate court, although the same was actually barred by the Statute of Limitations and was incapable of proof by reason of the dead man's statute. It was also claimed that Friedrich received several hundred dollars from Helen Compell for his alleged false testimony.
With this brief summary we shall proceed to a consideration of the errors assigned, and shall first consider the contention that defendant Friedrich was deprived of the right to counsel of his own choice. Friedrich is an attorney at law whose practice in Du Page County was largely limited to civil matters. He retained the services of Charles A. Bellows, a Chicago attorney who specialized in the trial of criminal cases. The defendant Theodore Zahler had likewise retained the services of Bellows in the conspiracy case. The first pertinent proceeding pertaining to Friedrich's right to counsel of his own choice occurred on May 28, 1957, shortly after the return of the indictment. On that date, the State moved for a continuance upon the grounds that James and Helen Compell were still in Florida, and that extradition proceedings were pending against them. At that time James Lucania and James Montana, who were each represented by separate counsel, demanded immediate trial. Bellows, on behalf of Friedrich and Zahler, likewise demanded an immediate trial and objected to the continuance. The motion for immediate trial was denied and the cause was continued until July 17. On June 13, the defendant Montana moved for a change of venue. At that time, Bellows stated that he represented both Zahler and Friedrich and that Zahler was also filing a motion for a change of venue, but that Friedrich was not. Bellows then stated that he represented the two defendants and that he intended to ask for a continuance, stating that he had reason to believe that no one would demand trial from that point on. Over the objection of the assistant State's Attorney the court granted a continuance so that all of the defendants would have an opportunity to file any further motions.
Thereafter, motions for a severance were filed on behalf of Fleck, Lucania and Montana. The court granted these motions and each of these defendants was granted a separate trial. Bellows then filed a motion on behalf of the defendant Zahler, requesting a severance. In that motion, Zahler stated that Friedrich had appeared before the grand jury and testified concerning the activities relating to the charges in the indictment; that Friedrich had made statements out of the presence of Zahler to the State's Attorney and that these statements were conflicting and antagonistic to Zahler, and would deprive Zahler of a fair and impartial trial. The petition further stated that Friedrich had told the State's Attorney that he had had numerous conversations with Helen and James Compell, out of the sight and presence of Zahler, which conversations purported to contain implications of Zahler's connection with the alleged conspiracy. It was further stated that Friedrich had signed as a witness to a petition for naturalization filed by Frank Rozanski, whose estate was the subject matter of the indictment, and that in this petition for naturalization, Rozanski had stated that he was married to one Stanislava Rozanski in Poland and that two children were born of that marriage. The petition went on to state that Friedrich had been the attorney for Rozanski in a divorce proceeding by which Rozanski obtained a divorce from his wife in Poland and that at that time Friedrich omitted in the complaint for a divorce any mention of the children previously referred to. It was further alleged in the petition that Friedrich had testified before the probate court that Rozanski never told him that he actually had any children born to him. It was alleged in the petition that by reason of these various statements and acts the defenses of Friedrich and Zahler would be antagonistic to each other, and that if Zahler were to be tried jointly with Friedrich, Zahler's right to a fair and impartial trial would be jeopardized and that the joint trial would produce the spectacle of Zahler and Friedrich attempting to destroy one another.
At the hearing on the motion, Bellows stated that he was in a peculiar position and stated that if he did not obtain a severance, it would make it difficult or impossible to represent both men. He pointed out to the court that the allegations made by Zahler in his petition for a severance, insofar as they pertained to Friedrich, were substantially the same statements made by the defendant Fleck in his motion for a severance, and since the court had granted Fleck's motion, he presumed that Zahler's motion would likewise be granted. The court then stated that he was concerned about the fact that Bellows was an attorney representing both parties and had continued to represent both, because if there was such a conflict of interests and antagonism between said defendants, as stated in Zahler's petition, the court could not see how Bellows could possibly continue as the attorney for both of them. He stated to Bellows that he could not believe that he could be serious about the antagonism, because in good conscience he could not stay in the case for both defendants and file such a petition. Bellows then stated that he had never undertaken to represent two parties where there was a conflicting interest and that while there was a conflict if the two defendants were tried together, there was no reason why he could not represent both of them on separate trials. The court replied that Bellows was in a difficult position. Bellows answered that he realized the difficulty of his position and he assured the court that he would not jeopordize the interest of any one because of conflicting interests. After some further discussion, the following colloquy occurred:
"Mr. Bellows: Maybe, perhaps, your Honor and I don't understand each other. I have always been under the impression two men may have antagonistic interests, insofar as the trial is concerned. If they are separated, your Honor, and they are tried separately and apart, I feel, your Honor, that a lawyer could defend each one of them separately and apart if they are not both tried together. I know of no reason why a lawyer couldn't do that. But if your Honor feels that it is a reason for not granting a severance, I will gladly withdraw from Mr. Friedrich's case.
"The Court: I know nothing except what I read.
"Mr. Bellows: Your Honor, if you feel that way, I will withdraw from Mr. Friedrich's case.
"The Court: I don't want you to do anything like that. It is up to you, but if you were going to do it, it should have been done before the petition was presented. If you want me to rule on the petition now
"Mr. Bellows: Suppose, on what you said, that I withdraw from representing Mr. Friedrich, suppose I make this motion now, that I intend to withdraw as his lawyer, and present to your Honor in good faith that I will do so.
"The Court: I think the petition should be redrafted on the face of it here. You are still his attorney, and you know about both defendants' cases. You have another motion, a companion motion, ...