WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
LESLIE E. SALTER, Judge, presiding.
MR. JUSTICE DAILY DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 22, 1962.
Defendant, Frank Santucci, was tried by a jury in the criminal court of Cook County, was found guilty of burglary and sentenced to the penitentiary for a term of not less than five nor more than thirty years. He prosecutes this writ of error contending (1) that actions of the trial court denied him a fair and impartial trial; (2) that the jury was improperly instructed; and (3) that incompetent exhibits were introduced into evidence.
Sometime during the night of January 30-31, 1960, an office of the S.S. Kresge Co. located in a building at 5626 W. Belmont Avenue in Chicago was burglarized. All had been normal when the office was closed at 6:00 P.M. on January 30, but an employee called to the premises by the police at 5:00 A.M. the following morning testified that the cashier's cage was open and that the outer shell of the safe had been removed. Nothing had been taken, but two acetylene torches, a radio and a bag of tools were found near the safe.
At about 3:00 A.M. on January 31, a Sunday morning, police officer Alvin Troc was at the rear of the building housing the Kresge office where he heard pounding and a radio tuned in to police calls. Detailing his action, Troc testified that he went to the nearest call box where he encountered another officer, Francis Size, and that the two then returned to the rear of the building. As they did so, they crossed through a parking lot which was adjacent to the rear of the building and across the street from a tavern known as Bell's Lounge. Upon their arrival at the rear of the building they noted a single stairway leading to the top floor of the building and a passageway leading to the stairs. The stairway, which was to the east of the portion of the building occupied by the Kresge office, was enclosed with chicken wire and had a door at its base that was closed and locked with a spring lock. Being unable to find a way into the building. Troc returned to the call box to summon additional help and remained away for about six minutes, while Size stayed at the building. As Troc was returning he heard an automobile horn blowing and then a shot. Upon arriving at the rear of the building he saw officer Size with a man in custody, and watched as the man unlocked the door to let himself out of the stairway. The man was the defendant. At the conclusion of Troc's cross-examination, the court asked the witness a series of questions which re-emphasized that defendant was locked inside the stairway.
Officer Size testified that as he was standing at the rear of the building an automobile came down the street with its horn blowing. A few minutes later, he observed three men run across the roof of the building and jump from the roof to the stairway. Size shouted for the men to halt but, instead, they turned around and ran back up the stairs. At this, the officer fired a shot. Two of the men continued back onto the roof and escaped, but one, the defendant, walked down the stairs, gave himself up and let himself out through the stairway door. Size said he asked defendant what he was doing there but received no response. Again, during the cross-examination of this witness, the court interposed question which emphasized that the three men on the roof had come down the stairway.
Later, Size had occasion to go to the Kresge office and found acetylene torches, hammers, chisels and a radio that was tuned in to police calls and still operating.
The first witness for the defense was Paula Galinski, a resident of Florida. She testified in substance that on January 31, 1960, she was married, but separated, and that she was then employed in Chicago as a receptionist. She had been acquainted with defendant for about a week and at about 9:30 on the night of January 30 had driven her car and met defendant at a steak house where they remained until about 1:00 A.M. At the suggestion of the witness they went next to Bell's Lounge and had drinks until the place closed at 3:00 A.M. When they left Bell's they went across the street to where the witness' car was in a parking lot and, while she was warming up the car, defendant excused himself, said he would be right back and then walked around the corner of a building the car was facing. She next saw him about two minutes later as he came around the corner with his hands up, and with a policeman standing in back of him. The witness said there were about eight or nine couples going to their cars at the time, that she didn't know what to do and didn't want to become involved in anything, so she drove away and went home after calling a friend of defendant's at the steak house and informing him of what had occurred. The court likewise interrogated this witness, both at the close of direct and cross-examination, the substance of the latter instance being as follows:
"Court: Mrs. Galinski, I want to clear up a matter in my notes. At this time in January you were separated from your husband?
Court: Where was he living at that time?
Answer: He was living in Florida.
Court: Then I was mistaken when I wrote down here, you said that after you saw the defendant in custody of the police you got in the car and left to meet your husband; ...