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The People v. Nischt

OPINION FILED NOVEMBER 30, 1961.

THE PEOPLE OF THE STATE OF ILLINOIS, DEFENDANT IN ERROR,

v.

JOSEPH NISCHT, PLAINTIFF IN ERROR.



WRIT OF ERROR to the Criminal Court of Cook County; the Hon. GROVER C. NIEMEYER, Judge, presiding.

MR. JUSTICE KLINGBIEL DELIVERED THE OPINION OF THE COURT:

The defendant, Joseph Nischt, was indicted by the grand jury in the criminal court of Cook County for the crime of murder. He entered a plea of guilty and was sentenced to the penitentiary for a term of life imprisonment. A petition for relief under the Post-Conviction Hearing Act was dismissed upon the ground that it was not filed within time, but we allowed a writ of error and remanded the cause to the trial court. The State then moved to dismiss the petition upon the ground that no substantial constitutional question was presented. The motion to dismiss was sustained and the petition was dismissed and we again allowed a writ of error and remanded the cause with directions to grant the defendant a hearing on the issues presented by his petition. Such a hearing was held and the trial court denied the petition after the hearing. We allowed a writ of error and the cause is now before us upon the brief of the defendant and the State.

In order that the issues presented on this writ of error may be clearly defined, we find it necessary to review at some length the allegations of the post-conviction petition and the previous order of this court remanding the cause for a hearing. The post-conviction petition alleged that the defendant was arrested and questioned by the police concerning the disappearance of one Rose Michaelis. It was alleged that the defendant consistently denied any knowledge of her disappearance and, after being questioned by the police, defendant was booked on a charge of disorderly conduct and released on bond. It was alleged that the following day the police officers again came to the apartment where defendant was employed as a janitor, took him down into the basement and told him that they knew that he had killed Rose Michaelis and burned her body in the furnace. It was alleged that at that time the defendant was beaten by the police and threatened with a pistol. He then made a verbal admission of guilt and was taken to the police station where, it was alleged, he was subjected to further brutality, as a result of which he signed a confession. He was later indicted for the murder of Rose Michaelis in an indictment which charged in several counts that the death occurred by beating and in other counts that the death occurred by burning in a furnace.

The petition also alleged that defendant's attorney told him that he should plead guilty because his confession would be introduced in evidence and he would receive the death penalty. According to the petition, defendant's attorney never told him that a confession coerced by brutality could not be admitted in evidence. It was alleged that defendant's attorney gave him the impression that the State could convict him on his confession alone without advising him that under the law there must be some corroborating evidence to establish the corpus delicti. The petition charged that the State would have been unable to prove the corpus delicti, and in support of this charge the defendant made the following allegations: It was alleged that two days after the disappearance of Rose Michaelis, the police conducted a thorough search of the ashes and other material taken from the furnace in which Rose Michaelis was alleged to have been burned and found no human remains. It was learned that a quantity of ashes had been removed from the building two days before and taken to the city dump and a large force of police officers then searched the vicinity where the ashes had been dumped and removed a large quantity of debris therefrom. This debris was later inspected by an anthropologist who examined more than 18,000 bone fragments found among the refuse and identified these fragments as the bones of various birds and animals but was unable to identify any of the bone fragments as human bones. It was further alleged that about two months after the disappearance of Rose Michaelis a test was conducted by the police officers in which the head from one body and the torso, legs and arms of another were placed in the same furnace and burned. The ashes were removed from the furnace after this test and examined by an anthropologist who found several bones which he positively identified as human bones. It was alleged that during the course of this test the furnace was operated under forced draft so that there was more intense heat than would ordinarly be used, and it was found as a result of this test that in spite of this abnormally high heat, the bones would not burn unless they were constantly raked into the center of the furnace where the heat was highest.

It was alleged that the defendant's confession stated that he only returned to the furnace one time after placing the body therein and found that the body had been completely burned. The confession made no mention of stirring up the ashes so as to draw the bones at the edge toward the center. It was alleged that this test conclusively proved that the body could not have been burned in the furnace since no bones were found in the ashes removed from the furnace at the time Mrs. Michaelis disappeared, and the later test showed that there would have been bones therein unless the furnace was operated at an abnormally high temperature and the bones were constantly raked into the center of the furnace. It was alleged that this information was known to the prosecutor but was not known to the defendant or his counsel, and it was alleged that the suppression of this evidence which, it is claimed, would establish defendant's innocence, was a violation of defendant's constitutional right to a fair trial. In our order remanding the cause for a hearing, we held that defendant's allegations with respect to the coerced confession and his allegation with respect to the suppression of the evidence required a hearing. These were the only issues properly before the trial court at the hearing.

In defendant's brief on this writ of error the defendant relies upon these issues and also claims that the defendant's counsel was ineffective and incompetent. Since this issue was not presented to the trial court it is not properly before us upon this writ of error. Furthermore, the record shows that the defendant was represented at the time of his conviction by counsel of his own choice, and under these circumstances defendant's allegation that his attorney was incompetent failed to present an issue requiring a hearing under the Post-Conviction Hearing Act. People v. Cox, 12 Ill.2d 265, 271.

The brief also claims that there was no evidence to show that a crime had ever been committed. While this allegation is indirectly involved in connection with the charge that the State suppressed certain evidence, the allegation that no crime was, in fact, committed, does not in itself present a substantial constitutional question calling for relief under the Post-Conviction Hearing Act. We have held in many cases that a plea of guilty admits all of the essential allegations of the indictment, and the State is not obligated to make any proof whatsoever. (People v. Terry, 12 Ill.2d 56; People v. Baxton, 10 Ill.2d 295). In the Baxton case we specifically held that an allegation that the State failed to prove the corpus delecti had no merit where the defendant had pleaded guilty.

The issues before us therefore are, first, whether the evidence at the post-conviction hearing established the defendant's charge that his confession was coerced by police brutality, and second, whether the State was guilty of suppressing evidence favorable to the defendant, which suppression served to induce the defendant's plea of guilty.

We first consider the charge that defendant's confession was the result of police brutality. The defendant testified at the hearing that he was beaten by two police officers at the apartment building at the time of his arrest. The defendant did not know the names of these officers. He testified that as a result of this beating he verbally admitted his guilt. He testified that he was taken to the police station at about 2:00 o'clock in the morning where he was continuously questioned, threatened and beaten. He testified that as a result of this brutality he signed a confession and also went out with the police officers to the apartment building where he participated in a re-enactment of the crime.

Three police officers testified that they arrested the defendant in the early morning hours at the apartment where he was employed. Each of these officers denied that they beat or threatened the defendant in any manner at that time. These officers also testified that they were present at the police station during the time when the defendant was being questioned and they all testified that the defendant was not threatened or subjected to any brutality. Another police officer who was not present at the time of the arrest but was present in the station while the defendant was being questioned, testified that he observed no brutality or threats. The assistant State's Attorney, who took the written statement from the defendant, testified that he had exercised no force against the defendant, nor had he observed any other person abuse the defendant. He also testified that he observed the defendant's appearance at the time the statement was taken and did not notice any bruises or other marks indicating that the defendant might have been beaten.

We are of the opinion that the defendant's unsupported testimony concerning the alleged police brutality was insufficient to establish his charge, in the face of the positive denials by all the police officers who were concerned with obtaining the confession.

We turn now to a consideration of the charge that the State suppressed evidence which would have established defendant's innocence, and his related charges that his plea of guilty was entered while he was ignorant of this evidence and that he would not have pleaded guilty had he been informed of this evidence. In his brief the defendant cites numerous cases holding that a defendant should be given leave to withdraw his plea of guilty if he makes any showing that he has a defense worthy of consideration. While the rule set forth in these cases is well established, it is not, in our opinion, applicable to the present case, for defendant did not, at any time make a motion for leave to withdraw his plea of guilty and it was not until many years after his conviction that the present proceedings were instituted. This, therefore, is not a case involving the discretion of the trial judge in permitting a defendant to withdraw his plea of guilty. This case, arising under the Post-Conviction Hearing Act, involves only the issue of whether any substantial constitutional right of the defendant was violated by an alleged suppression of evidence favorable to the defendant.

The fact that no bones or other human remains were found in the furnace shortly after the disappearance of Rose Michaelis was widely publicized in all of the Chicago newspapers and was known to defendant's counsel. This fact is apparent from a transcript of the argument of defendant's counsel on a motion to quash the indictment. This argument was made in June, about three months after the crime and about six months before defendant's plea. In that argument, counsel referred to the search of the furnace and the city dump and stated that the fact that no human remains were found was reported to every newspaper in the city of Chicago. Counsel stated that this information was so widely known that the court should take judicial notice of it. The defendant testified at the post-conviction hearing that he was never told by his attorney that there were no bones found and testified that his attorney had told him the police had discovered bits of bone in the furnace. At the time of the post-conviction hearing, the attorney who represented the defendant at the time of his conviction was dead, and therefore the only evidence as to what the attorney told the defendant was defendant's own testimony. In our opinion defendant's testimony on this point is unworthy of belief in view of the wide publicity to the effect that no human remains were found in the furnace.

The defendant admitted at the hearing that during the time he was confined in jail, between the time of the indictment and the time of his conviction, he had access to his family, and that his mother and father frequently visited him. It is inconceivable that he would not have been informed of the newspaper reports by his parents. Furthermore, his actual knowledge of these facts is of little legal consequence, for it is ...


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