WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
JAMES R. BRYANT, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 20, 1961.
Sidoro Agnello, whom we will refer to as defendant, was indicted by the grand jury of Cook County for the robbery of a tavern located on Kilbourn Avenue in the city of Chicago on September 14, 1955. Jointly indicted with the defendant were John Demitralis and Kenneth Thurman whose cases were disposed of on pleas of guilty.
About one year later the defendant was tried by a jury, found guilty, and was sentenced to the Illinois Penitentiary for life, the habitual criminal count explaining the severe punishment.
Before passing upon the many assignments of error presented by defendant on this writ of error, we deem it important to recite rather fully the factual basis for this conviction.
At 10:00 o'clock of the evening of September 14, 1955, the O'Dell Tavern was robbed, and $135 was taken from the business and the customers. John Demitralis testified for the prosecution as follows: He had been acquainted with Sidoro Agnello, under the name of John Sheets, since 1941 and had known Kenneth Thurman since 1945. On September 14, in the afternoon, he saw Agnello in John's hotel room in the Linwood Hotel on Washington Blvd. Others present were Thurman, Sally Logan and Charlene Fuller. Demitralis was dressed in blue slacks and a yellow sport shirt, and defendant wore blue slacks and a gray shirt. At 8:30 P.M. he left the hotel room with Agnello, Thurman, and Charlene Fuller, being driven by Agnello in his car. Agnello started to drive him home but Thurman suggested a robbery, stating that he was in dire need of money. He further testified: "I had a .45 caliber gun. There was one other gun in my presence. I saw it in the car when it was handed to Thurman. We drove to O'Dell's Tavern. All three of us adjusted handkerchiefs on our faces. As I entered the place I announced that it was a stick-up, ordered 8 or 9 people into the washroom and guarded them while Thurman and defendant collected the money," During the holdup policemen arrived, whereupon the three robbers fled in different directions after diving through a window in the rear of the premises. John entered a cab on Lake and Wilcox and commanded the driver to assist him in his flight. He was taken to a point about one block away from his hotel; he went to his room and in about one-half hour saw cars arriving loaded with policemen. "I tried to escape through the back door but was stopped, so I locked the door and got rid of my gun in the coal pile in the basement and on returning to the lobby was arrested." Sally Logan was in his room at that time. John further testified that he was placed in a line-up at the detective bureau where he was identified by John Brennan, one of the customers in the tavern at the time of the holdup. Soon thereafter Demitralis signed a written confession implicating Agnello and Thurman. Demitralis denied that he was given any hope of reward for the assistance he was giving the State in this prosecution. The final item in the record indicated that Demitralis was sentenced to the Illinois Penitentiary for an indeterminate period of four to eight years, the habitual criminal count being waived. The sentence was pronounced by the same judge who presided at this trial and was entered one day following the guilty verdict entered herein.
Tom Brown was the bartender at the time of the robbery. His testimony as to the details of the incident were in most respects the same as the preceding witness. He was able to identify Demitralis because his mask fell down and he was able to get a full view of his face, and said, "I told the police officer that I was almost positive Agnello was one of the men." The description he gave the officer of the size and age of the men and color of their clothing corresponded with Demitralis's testimony.
John F. Brennan, a customer in the tavern at the time of the holdup, testified that he was one of several that was herded into the washroom, that the bartender, Brown, was called out to locate more money; that they took his wallet that contained no money, just identification cards; that upon the arrival of the police "all three went through the window." "Looking about the courtroom I recognize one of the three men who robbed the O'Dell Tavern" pointing toward the defendant; "I believe he was dressed in light blue or grey pants and shirt. He was holding one of the guns." Brennan recognized and pointed out each of the three men when they appeared at the show-up at the detective bureau on different dates. Brennan was present when Demitralis made his confession. Brennan further stated that at the show-up when he identified Agnello, "Agnello asked the policeman if he could ask me a question and Agnello asked, `How did you identify me if I had a mask on, or if I wore a mask on?'" Brennan was sure that he received no aid from the police department by way of photographs or suggestions in his identification on the three separate occasions.
Barbara Marquard, who is employed in general office work, lives at 4452 W. Wilcox, which is only 40 feet east of Kilbourn Avenue, and was walking with her dog on the night in question. While she was at the northwest corner of Kilbourn and Wilcox she saw three men on the southeast corner of that intersection. There was a street light on each of the corners, which were about 35 feet apart. When the three men moved southward, they were seen to place handkerchief masks on their faces. Miss Marquard then went across the street and on south to a point directly across from O'Dell Tavern and saw the three men enter the building and proceed with the robbery as has been described. A gentleman came along, and she advised him of what was taking place and asked him to notify the police, whereupon several squad cars came instantly. That night she went to the Warren Avenue police station where she recognized Demitralis in the line-up with several others. On September 18 she went to the same place and picked Kenneth Thurman out of the line-up, and she went back on September 19 and picked the defendant out of the line-up. She said the area was well lighted and that she was able to observe closely.
John Joseph McNally, an officer attached to the robbery detail on the night in question, testified that he received a call that stated that a white man with a revolver got out of the caller's cab at Wood and Lake Street and that he was followed to the Linwood Hotel at 1812 Washington Blvd. Police were sent to that location, and three officers guarded the rear and a like number remained at the front entrance. McNally said he went to room 204 in the hotel and found a young woman by the name of Sally Logan. She told him that her husband had just left. Shortly thereafter both Demitralis and Mrs. Logan were placed under arrest. McNally further testified that after Demitralis was identified at the show-up the next day by several people, he admitted his part in the robbery and named Kenneth Thurman and a man by the name of Sheets as participants. At the trial, Demitralis stated: "Sheets is the gentleman setting over here at the table" (indicating Sidoro Agnello). On Sunday of that week Thurman was arrested at 2638 S. Wentworth Avenue where he was staying with his daughter. McNally said Thurman admitted his part in the robbery, and he too named Sheets as an accomplice. McNally further testified: "On September 19, we were posted in the 2700 block on North Avenue. We noticed two men talking and they went in an alley at North Avenue east of California. I recognized one of the men as Johnny Sheets. I told Agnello to march over to the car and put his hands on the side of the car. I searched him and found a revolver in his right hand pocket. On the way to the detective bureau the defendant said, `I expected that, that God damn Greek Johnny Demitralis ratted on me', and he said `when you get down town will you forget about the pistol?'" McNally further corroborated the other witnesses in their testimony concerning the show-ups when defendant was present and corroborated Brennan in his testimony that defendant asked him how he could possibly be identified when he had a mask over his face.
Samuel Rosen, chief clerk in the criminal court clerk's office, testified that Joe Mangan, according to the records of his office, identifying the pages, had been indicted for robbery in June, 1948, pleaded guilty and was sentenced to the penitentiary. Officer John J. Murphy testified that Joe Mangan and the defendant were the same person. On this review defendant does not question the propriety of this proof.
Kenneth Thurman returned from the penitentiary for this trial and testified for the defendant. His memory as to the events pertaining to the tavern robbery on September 14 was the same as the other witnesses except he could not remember the name of the third member of the trio, other than himself and Demitralis. He said, "It was not Sidoro Agnello. Agnello was with me in the show-up on September 19 at the detective bureau at Eleventh and State Streets." Thurman further testified that he had served time in the Illinois Penitentiary for robbery in 1932, 1934, 1947 and 1951; that he signed a confession while at the detective bureau; and that Barbara Marquard, who had identified him in the show-up, signed the statement as a witness.
On seven distinct occasions Thurman stated in his confession that Agnello participated in the robbery with him and Demitralis, but at the trial he said that was a mistake. He was reminded that at the conclusion of the statement it recited that he had read the confession and that it was given voluntarily without promise of reward. To this he explained that he had failing eye sight, that his glasses were in disrepair and that borrowed glasses did not help. Surely Thurman's valiant effort to be helpful to a brother in distress was not impressive.
Mrs. Marie Faciano was too ill to appear and testify, so her affidavit was received as evidence to avoid a continuance. In it she stated that the defendant came into her restaurant in River Grove, Illinois, about 8:30 in the evening of September 14; that shortly thereafter she and the defendant went to the King Cole Restaurant in River Forest, Illinois, ordered chicken and remained there until after 10:00 P.M.; that they then returned to her restaurant where defendant remained until 11:00 P.M., whereupon he departed in his car saying he was going home. To meet this alibi evidence, the State called Sally Logan. She testified that Agnello, Thurman and Demitralis were in room 204 in the Linwood Hotel on the evening of September 14 from 6:00 P.M. until 9:00 or 9:30 drinking and talking, when the three left in Agnello's car, having with them two revolvers; that Demitralis returned about 10:30 and soon thereafter the officers arrested her and Demitralis.
Officer Walter McTigue, who interviewed witnesses after the holdup, and a court reporter, who reduced to writing questions that were asked Barbara Marquard, testified for the defendant. Their testimony had little ...