WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
FRED W. SLATER, Judge, presiding.
MR. JUSTICE HOUSE DELIVERED THE OPINION OF THE COURT:
Danny Escobedo was indicted in the criminal court of Cook County for the murder of his brother-in-law, Manuel Valtierra. A jury found him guilty and fixed his sentence at 20 years confinement in the penitentiary. He seeks a review of the conviction on this writ of error.
The record shows that Manuel Valtierra was murdered in the backyard of his home on January 19, 1960. The evidence connecting defendant with the murder is his confession. It shows that decedent was married to defendant's sister, that decedent and defendant had argued about decedent frequently beating the sister and that on January 19, 1960, defendant hired Benedict DiGerlando to murder his brother-in-law.
It is first argued that the trial court erred in admitting the confession into evidence. The defendant was immediately suspected of implication in the crime and was questioned on January 20 and at various other times, but there was not sufficient evidence to hold him. On January 30, 1960, DiGerlando was in custody and between 7:30 and 8:00 P.M. he made a statement to the police in which he named defendant as the one who fired the shots killing Valtierra. Defendant and his sister were arrested about 8:00 or 9:00 P.M. While they were on their way to the police station, Gerald Sullivan, one of the arresting officers, told defendant that DiGerlando had named him as the one who shot Valtierra. Defendant said he wanted to hear DiGerlando say that. Officer Montejano saw defendant about 10:00 and again repeated to him what DiGerlando said. Defendant said DiGerlando was lying. Montejano then asked defendant if he would like to hear DiGerlando say it and defendant said yes. After DiGerlando had accused defendant of shooting Valtierra at their confrontation, defendant told officers Montejano and O'Malley that DiGerlando was the one who fired the shots. Officer Flynn arrived about this time, 10:15 P.M., with officers Sullivan and McNulty, and officers Montejano and O'Malley left. Defendant told Flynn in the presence of Sullivan and McNulty that DiGerlando had done the shooting. About 11:30 assistant State's Attorney Theodore Cooper and court reporter Don Flannery arrived at the homicide bureau. Defendant then made the confession to Cooper. Cooper, Flannery and Montejano were present when the confession was made.
Warren Wolfson, defendant's attorney, arrived at the police station about 10:30 P.M. He asked several officers for permission to see defendant. After his requests were denied he showed the officers the statutes concerning the right of an attorney to see his client. He left the station about 1:00 A.M. without having had a chance to consult with his client.
The defendant on direct examination testified that when he arrived at the police station he asked to see his lawyer. He said that Montejano approached him about 10:00 or 10:30 and told him that "DiGerlando had already made a statement saying that he shot the man, my brother-in-law, and he would see to it that we would go home and be held only as witnesses, if anything, if we had made a statement against DiGerlando." He said he gave no statement to Montejano after the promise was made and made no statement until the assistant State's Attorney arrived. Defendant's attorney then asked if the statement was true and defendant replied, "No it isn't." The attorney then asked, "Why did you make this statement to the State's Attorney?" The defendant answered, "I seen that my sister was being put at the head of this crime and I knew she had not done it and I wanted to help my sister and that is the reason why I made the statement." His attorney apparently was not content with this answer inasmuch as he asked the following questions:
"Q. Did the fact that you had been made promises by Montejano have any bearing upon your making this statement?
"Q. Did the fact that the police officers had made promises specifically that you would not be prosecuted if you made this statement have any effect on your making that statement?
"Q. Were these promises in fact the motivation that made you make this statement?
With a number of other leading questions the attorney also brought out that Montejano spoke to defendant in Spanish and told him that he had gone to school with his brother and could help him and that "Benny is Italian and there is no use in a Mexican going down for an Italian."
The defendant did not accuse any of the police officers with having beaten or threatened him. He said the promises made by Montejano were not made in the presence of any of the other officers and he did not tell the assistant State's ...