WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
DANIEL A. ROBERTS, Judge, presiding.
MR. JUSTICE HOUSE DELIVERED THE OPINION OF THE COURT:
Robert Jackson, herein referred to as defendant, and DeSoto Allen were convicted of murder in a joint bench trial in the criminal court of Cook County. Jackson was sentenced to the pententiary for a term of 30 years and a writ of error has been issued to review his conviction.
Isaac Berger was shot and killed during a robbery of his grocery store between 5:00 and 6:00 o'clock P.M. on February 27, 1956. Ollie Brown, Jr., a customer, entered the store during the robbery and saw two robbers, one of whom had a gun. As he ran from the store to call the police, he heard a shot. He identified DeSoto Allen as the person who had the gun, but he could not identify the other man. John Anderson, who lived in an apartment above the grocery, testified that at the time in question he heard a shot and saw three men run out of the store. The only one he could identify was the defendant. A joint confession of defendant and Allen was admitted into evidence.
Defendant testified that he was at his mother's home at the time of the robbery, which testimony was corroborated by that of his mother and his 12-year-old brother. He further testified that he made the confession because police officers Herring and Charles beat him until he confessed. Allen testified that he was at home at the time of the robbery and that he confessed because the same police officers had beaten him.
Defendant contends that the trial court erred when it admitted the confession in evidence without a preliminary hearing. The People argue, on the other hand, that defendant did not request a preliminary hearing on the admissibility of the confession and the trial court properly admitted it. Defendant's counsel objected to the admission of the confession on the ground that it did not show that defendant's constitutional rights were explained to him, it was not signed, and that it is highly irregular and improper and without proper foundation. A confession to which no objection is made is properly admitted in evidence without the introduction of preliminary proof. (People v. Molin, 372 Ill. 422,) but if an objection is made, it is the duty of the court to hear such evidence as the parties may present concerning the circumstances under which the confession was made. (People v. Wagoner, 8 Ill.2d 188.) It was also said in the Wagner case and in People v. Frugoli, 334 Ill. 324, 334, that an objection that no foundation has been laid for the admission of the confession is sufficient to call for a preliminary hearing on its admissibility.
We believe that under the circumstances of this case, defendant's objection to admission of the confession without a specific request for a hearing was sufficient to call for a hearing on the voluntariness of the confession. The failure to conduct a hearing on admissibility does not, however, require a reversal of the trial court's finding of guilty. See Jackson v. Denno, (U.S.) 12 L.ed.2d 908, 84 S.Ct. 1774; People v. Wright, 30 Ill.2d 519; People v. Beattie, 31 Ill.2d 257.
Defendant argues that the evidence does not support the conviction because the confession was not corroborated, and because Anderson's identification of defendant cannot be believed. The record does not support defendant's assertion that there is no evidence to corroborate his confession. There is sufficient testimony to show that Isaac Berger was killed during a robbery of his store, that defendant was in front of the store before the shooting and that he ran out of the store immediately after the shooting.
The testimony of DeSoto Allen, the accomplice, did not implicate defendant in the crime. Allen's confession implicated defendant, but Allen's confession was not considered in determining defendant's guilt or innocence.
Defendant's final contention is that Anderson's identification cannot be believed because he said Jackson had a hat on his head, while Brown testified that Allen had a hat on his head. The record shows that Anderson said "This fellow here had on a cap." It is not clear whether he was referring to defendant or Allen. In any event the discrepancy, if any, is not such as to entirely discredit Anderson's identification.
The cause is remanded for a hearing on the voluntariness of the confession. If the confession is found to be involuntary, the trial court will vacate the judgment of conviction and grant defendant a new trial, otherwise the trial court will enter a new judgment of conviction.
Cause remanded, with directions.
Mr. JUSTICE SCHAEFER dissenting:
I agree that it was error to admit the confessions of the two defendants into evidence without a hearing as to their voluntariness. But the record discloses circumstances which, in my opinion, make it inappropriate to remand the case solely for a determination of the voluntariness of Jackson's confession.
Three defendants were indicted for this crime. All three pleaded not guilty and were tried together. One of them was discharged at the close of the prosecution's case and the trial continued as to the other two, Jackson, whose writ of error is presently before us, and De Soto Allen, whose case is not now before us. The confession admitted in evidence was a single court reporter's transcript showing the questioning first of one defendant and then of the other, in each other's presence and hearing. Allen's confession named Jackson, and Jackson's named Allen. No effort was made in the trial court to separate the two confessions. The statement of the trial judge that "There is no evidence that there was a gun in the hands of Jackson at that time except by ...