WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
CHARLES S. DOUGHERTY, Judge, presiding.
MR. JUSTICE SOLFISBURG DELIVERED THE OPINION OF THE COURT:
The defendant, Stephen Kalec, was indicted on a charge of murder of one Joseph Bryniczka. He was tried before a jury, found guilty and after motions for a new trial and in arrest of judgment were denied, his punishment was fixed at imprisonment in the penitentiary for life. The case comes to us on writ of error.
The defendant contends that there was insufficient evidence to support the verdict, and that he was denied a fair trial by the interference of the trial judge. His additional contention that he was not tried within four months of confinement was waived upon oral argument.
It appears that defendant worked as a bartender in a Chicago tavern located at 1858 West 47th Street, owned by Joseph Pietrzyk. On May 2, 1958, he returned to the tavern in the evening after working all day. He had several drinks with Pietrzyk, one Nendza, the deceased Bryniczka and three girls. It appears that everyone there was drinking a substantial amount. Defendant left the side door of the tavern between 9:45 and 10:00 P.M. It is undisputed that the deceased and Nendza also left about the same time, but the testimony is in conflict as to the exact order of their leaving. The witnesses in the tavern then heard three or more shots, and the defendant was seen walking away from the body of the deceased. They heard no argument between the defendant and the deceased, and did not see defendant with a gun.
The witness Nendza testified that he knew both the defendant and the deceased for many years; that he left the tavern about 10:00 P.M. with the defendant at his request. When they reached an alley next to the tavern, defendant turned, drew a gun and fired three shots wounding Nendza. Nendza got up and while walking out of the alley heard three more shots.
Angela Stefaniak lived next to the tavern, and was at home on the second floor the night of May 2, 1958, when she heard three shots. She went to the kitchen window and saw the defendant and deceased walking from the tavern. She heard defendant say to deceased, "You ____, we'll settle this in the alley." Before they reached the alley, the defendant turned and fired three shots at deceased who fell back upon the ground, and defendant walked back to the tavern.
The police found defendant asleep in a booth in the tavern when they arrived. They did not find the gun used to kill the deceased.
We think the record clearly supports the verdict of the jury. The testimony of the eyewitness, Stefaniak, is credible and corroborated by other witnesses. We do not give substantial significance to the discrepancy in the testimony of witnesses in the tavern regarding the exact number of shots heard and the exact sequence in which Nendza, the deceased and the defendant left the tavern. Considering the atmosphere in the tavern, the conflict in the testimony is understandable.
Defendant also asks us to reverse the judgment and remand the cause because of alleged misconduct of the trial judge. He cites four instances which he claims constitute reversible error. The first arose when the trial judge refused to permit certain questions to be put to an investigating officer on cross-examination, although the State had made no objection. We have examined the record carefully and it is patent that these questions involving certain facilities of the Crime Laboratory's Mobile Unit were both immaterial and beyond the scope of the direct examination.
Again, without objection on the part of the State, the court refused to permit defendant's counsel to examine a witness with regard to an argument between defendant and deceased five months before, on the ground the incident was too remote. From an examination of the record, we think that the questions asked were objectionable. Considering the entire record, we think the trial judge did not commit prejudicial error in limiting the scope of the testimony to the relevant issues in the case in these two instances.
Defendant further complains of the trial court's statements upon cross-examination of the State's witness Angela Stefaniak. The first colloquy, which took place when the witness was being cross-examined concerning a photograph of her apartment, was as follows:
"Q. And, when you first heard, that is, you heard the first three shots, you looked out the window of your mother's apartment, isn't that correct?
Q. Well, that is the second floor, isn't it?
Q. Well, that particular window isn't shown.
The Court: That isn't her fault.
The Witness: A. That is the first three shots I heard.
The Court: She said it would have been shown if that post wasn't in the way.
Mr. Egan: This picture, to me, doesn't show the second floor.
The Court: I don't know anything about it.
Mr. Egan: That's the picture.
The Court: This is only part of the building; obviously, the building goes up.
The Court: She says the window is up here (indicating) It doesn't show because ...