WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
HAROLD P. O'CONNELL, Judge, presiding.
MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
Defendant, Robert Palmer, was tried by a jury in the criminal court of Cook County where he was represented by the public defender, was found guilty of burglary and was sentenced by the criminal court of Cook County to a term of five to twenty years in the State penitentiary.
Defendant is here by writ of error seeking a review of that conviction under Supreme Court Rule 65-1. (Ill. Rev. Stat. 1961, chap. 110, par. 101.65-1), contending: (1) that he was illegally arrested and detained, subjected to illegal searches and seizures, and denied counsel, contrary to the due process requirement of both the federal and state constitutions; (2) that his guilt was not proved beyond a reasonable doubt; and (3) that the trial court committed reversible error by admitting incompetent evidence and prejudicial argument.
Defendant frequently patronized the Crystal Inn, a tavern in Oak Forest, Illinois, located immediately across the highway from his trailer home. On the night of December 2, 1961, he was in the tavern from 10:00 P.M. until midnight, went home, returned about 1:30 or 2:00 A.M., and finally left again about 3:45 A.M. About 9:00 P.M., that evening, Hilbert Kampe, the tavern owner, took over the bartending chores from his regular bartender and longtime friend, Herman Jergens. Jergens left but returned about 11:00 P.M., and tended the bar for the rest of the evening. Kampe stayed on, chatting, and had about three drinks of whiskey. Both Jergens and defendant testified that Jergens shoved Kampe off his stool at about 3:30 A.M., during an argument in the presence of defendant and others. Some time later Kampe fell asleep at the northeast corner of the horseshoe-shaped bar. Jergens closed the bar at 4:30 A.M., locked all the doors and windows, swept the barroom and checked the kitchen, storeroom and washrooms. Kampe slept throughout this time and was sleeping when Jergens left at 5:30 A.M.
Kampe testified that some time later he was awakened by a noise and walked about 15 feet to the center of the barroom where he saw the defendant standing about 6 feet away; that he saw defendant's face; that defendant was wearing a leather jacket which was, or was like, People's exhibit No. 1; that he, Kampe, called defendant "Bob"; that defendant said, "Now, I have to kill you."; and that then defendant struck him about the head with a hard object a number of times. Kampe's next conscious moments occurred when he arose from the floor calling for the bartender and knocking things around to make noise in order to attract attention because his eyes were so swollen he couldn't see.
Captain Maher and officer Boothe of the Oak Forest police arrived at the tavern about 6:05 A.M., in response to a telephone call received several minutes earlier. After looking in and seeing a man's face covered with blood, they broke open the west door, and found Kampe standing nearby. Kampe was sent by ambulance to a hospital where he remained in critical condition for some time. An examination of the interior of the barroom revealed scattered blood and a hammer and knife lying on the floor behind the bar amid broken bottles. The hammer was admitted as People's exhibit No. 2. The inside latches had been pulled off of two doors leading into the building. Herman Jergens then arrived on the scene and, with the officers, proceeded to the police station. Shortly after 7:00 A.M. Maher and Chief Perry went to the defendant's trailer and were admitted by his wife. They asked Palmer if he would go to the station for questioning and he consented. After he dressed, the officers took him to the station about 8:00 A.M. At approximately 8:30 A.M., after Maher, Perry and the defendant had been at the station for awhile, Maher sent officer Boothe to the trailer to get a pair of boots which had been seen under the bed while defendant was dressing. When Boothe brought in the boots 15 minutes later, Maher observed what he thought was dried blood on them. The boots were admitted as People's exhibit No. 3.
At about 1:30 P.M., Maher and Perry returned to defendant's trailer, and took a leather jacket belonging to the defendant from a closet. Maher observed what he thought to be dried blood stains on the front and arms thereof. They took the jacket back to the station, and at the trial it was admitted as People's exhibit No. 1. The officers had various conversations with defendant throughout the day. At approximately 8:00 P.M., Maher and officer Clayhauer saw defendant's wife again and allegedly took a written statement.
Maher testified that he again talked with defendant alone at the lockup about 10:00 P.M., and that defendant asked him how Kampe was, to which he replied: "in critical condition", and asked defendant why he had hit Kampe. According to Maher, defendant said: "I didn't want to hit him. He made me. If I go up again, it will be for life." He also said that he had hit Kampe with just the hammer, not the trophy, but couldn't bring himself to stab him so threw down the knife and ran. Moreover, Maher testified that defendant said the crime laboratory wouldn't find fingerprints because he had worn gloves. Maher testified that when he first observed the hammer it appeared to have dried blood and hair on it which had worn away partially since then. On cross-examination Maher restated much of his prior testimony on direct examination, including his 10:00 P.M. conversation with defendant in the lockup during which the above alleged oral confession occurred. Maher testified that on other occasions defendant denied the crime, but Maher didn't recall when these conversations took place or whether there were other people present at those times, except that they took place before the alleged statement was obtained from Mrs. Palmer. Neither this statement nor the substance thereof was ever admitted into evidence.
A microanalyst for the Chicago police laboratory testified that tests which he performed on People's exhibit No. 1, the jacket, indicated that the stains thereon were human blood, but no tests had been run to determine the blood type. No tests were run on the boots or hammer. An officer of the mobile crime laboratory who investigated the tavern premises late in the afternoon of March 3, testified that the hammer which he found behind the bar, People's exhibit No. 2 appeared to have blood and hair thereon when he examined it the first time.
Defendant testified that he was married, had a baby daughter, and had pleaded guilty to armed robbery in 1960 and was on probation for 5 years; that for several months he had been a patron of the Crystal Inn; was there on the evening of December 2-3 from about 8:00 or 9:00 P.M. until 11:45 P.M., and again from 1:30 A.M. or 2:00 A.M. until about 3:45 or 4:00 A.M.; that Jergens had reached over the bar and hit or pushed Kampe off his stool about 3:30 A.M.; and that both Kampe and Jergens had drinks while he was at the tavern. He went directly home to bed after last leaving the tavern but later saw lights and people around that building at 5:30 A.M. when he got up for the baby's bottle. He said his wife also saw this activity. Then he related the facts of his being taken into custody on December 3, and also testified that at the police station he had been questioned several times that day concerning the crime. Palmer testified that Maher and Perry kept trying to get him to admit the crime, saying if Kampe should die that he, Palmer, by signing a statement, would be better off. However, defendant said he continually denied the crime, and also denied having made any kind of oral confession.
It was also established that defendant was an apprentice welder at the time of his arrest and in his work used ordinary ball-peen hammers, such as People's exhibit No. 2, although he did not own such a hammer.
Mrs. Palmer testified that People's exhibit No. 1, the jacket, looked like her husband's jacket and that Captain Maher had taken it from the closet in the trailer.
Chief of Police Perry testified that he saw and conversed with Palmer 3 or 4 times on December 3, first in his trailer then several times at the station. He denied ever saying to the defendant that if Kampe died he would be charged with murder so it would be a good idea to sign a statement. Chief Perry testified that he only asked defendant why he wouldn't tell the truth and give a statement.
As to the contention that defendant's arrest without a warrant and his subsequent detention violated his State and Federal constitutional rights, the Criminal Code of Illinois provides that an officer of the law may make an arrest without a warrant, "* * * when a criminal offense has in fact been committed, and he has reasonable ground for believing ...