Writ of error to the Criminal Court of Cook County; the Hon.
GEORGE FIEDLER, Judge, presiding. Affirmed.
MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
Rehearing denied October 21, 1964.
James Pompey, defendant, was indicted for theft. A plea of not guilty was entered and the case was tried before a jury. The jury returned a verdict finding the defendant guilty. Defendant's post-trial motions were overruled; the court entered judgment on the verdict, and sentenced the defendant to three to six years in the Illinois State Penitentiary. From that judgment this appeal is taken.
The alleged errors relied on in this court by the defendant are that the State failed to prove him guilty beyond a reasonable doubt; that certain prejudicial testimony was admitted into evidence; that the court wrongfully denied defendant's motion for a list of witnesses before the trial, and permitted the unsworn testimony of the prosecuting witness to go to the jury.
Ernest Weinrich was the complaining witness. He testified that he and the defendant were co-employees and that the defendant had told him he would fix him up with a girl; that on October 7, 1962, Weinrich came to a tavern at 844 Montrose Avenue to meet the defendant at the defendant's request. *fn1 Just after midnight Weinrich accompanied Pompey to the latter's apartment in Room 202 at 839 Montrose Avenue. Thereupon, Pompey left Weinrich for five to fifteen minutes and came back accompanied by a girl about eighteen years old. Pompey left the girl and Weinrich alone in the room and went downstairs. Weinrich undressed but the girl did not. Weinrich asked her how old she was and she said she was twenty-six. She asked Weinrich for money; first $10, then $15, then $30; Weinrich agreed to pay her $30. The lights were on as Weinrich sat, unclothed, in the chair, and the girl, clothed, sat on a couch. They discussed the divorce Weinrich had previously obtained. The door opened and a man came in with a badge. Pompey also came in. The man with the badge said "Vice Squad." Pompey and Weinrich then went into the bathroom where Pompey told Weinrich that since Weinrich had once been arrested for indecent exposure he could get five to ten years for his conduct that night in having the girl with him in Pompey's apartment. Pompey suggested that they talk to the alleged police officer about the possibility of his being paid off. When they talked to the alleged police officer he said he wanted $9,000 to forget about the incident. Pompey wrote a check for $4,500, and gave it to the alleged officer. Weinrich gave the officer a ring. The girl and the alleged officer then left.
Weinrich testified that he remained with Pompey the rest of the night and that about 5:30 in the morning they went to a restaurant on Montrose where they ate and talked. They then took a taxi to Weinrich's room where the prosecuting witness took $600 in cash from his dresser drawer. At 6 o'clock they went downtown and waited in the Walgreen Store in the Greyhound Bus Station until the banks opened. Weinrich then drew out $1,675 in cash and they went to a tavern on LaSalle Street, and Weinrich gave the $2,275 to Pompey. They then walked to the Continental Bank where Pompey's sister had an account. Pompey went upstairs alone and later told Weinrich that he had put the money in his sister's bank account. Weinrich gave Pompey the money to repay him for the check he had written and given to the alleged police officer.
They then went to the City Hall where the alleged police officer, who had given his name as "Foster," had told them to meet him in room 207. Foster did not appear at the room, and when they asked for him, no one knew him. Weinrich and Pompey then went home. Their intent in seeking Foster was to give him additional money. Weinrich also testified that he saw the man, who had given his name as Foster, on Wednesday morning at Bryn Mawr and Broadway. He had called Weinrich and told him to meet him. Weinrich then gave him $300 more which he had borrowed from a finance company.
After Weinrich went back to work he talked to a friend of his who apparently raised some question in Weinrich's rather dimly lighted mind that the entire situation was not exactly as it appeared. Weinrich then went to the police, made a complaint, and Pompey was arrested. The police officer testified that he had arrested Pompey and that during his time on the police force he had never heard of an Officer Foster. Pompey was identified by Weinrich in the presence of the officer and Pompey remained mute. As a witness in his own behalf at the trial, Pompey denied the entire transaction. He admitted that he had been convicted of strong-arm robbery in 1956, had spent six years in the penitentiary, and presently was on parole. He testified that on October 7 he had no date to meet Weinrich, although he did see him in the tavern on Montrose Avenue. They had a few drinks, played the pinball machine, and about 8:30 or 9:00 p.m. Weinrich, Pompey and another man referred to as Cleve left the tavern. They helped Cleve move some of his chattels and then went back to the tavern. This was after 9:20 p.m. Cleve had been accompanied by his wife, and they left about 9:30. He came back about 10 o'clock. Weinrich left shortly after 10:00 and Pompey left about 11:00. The next time Weinrich saw Pompey was at 6:30 Monday morning.
Pompey testified that after he left the tavern he went home, which was directly across the street; that he was in his home and his sister and brother-in-law were also there. The doorbell rang at 6:30 a.m.; Weinrich was there, very excited, and asked Pompey to go downtown with him. *fn2 Pompey got dressed and went with Weinrich to a restaurant where they had breakfast. Pompey also testified that when he left the tavern at 11 o'clock he went to the apartment; that his sister and brother-in-law were watching television. He sat with them for a short time, then ate and went to bed. The next morning he went out with Weinrich. Weinrich was telling him a story of which Pompey could make nothing. They ate at the restaurant on Montrose and Broadway, then went downtown. Weinrich said he had to see "Foster." When they got downtown they had something more to eat at the cafeteria in the Greyhound Bus Station. Weinrich left him for awhile and when he returned Pompey went home. He denied that he had ever been to the City Hall or to room 207 therein. He denied that Weinrich gave him any money or that he had asked him for any. After he was arrested the police officer asked Pompey if he knew anything about the episode and he said he knew nothing. He also said that he did not know a Chuck Foster. At the time the police showed Weinrich several pictures but he could not identify any of the pictures as Foster.
The man referred to as Cleve testified that he was at the tavern in question on the date in question. He arrived there about 6:30 or 7:30 p.m., and Pompey was there at the time. Afterwards he saw Weinrich. They stayed in the tavern at that time for about an hour and a half. At about 8:30 they left and Pompey and Weinrich helped Cleve move. The three of them then went back to the tavern, arriving about 9:30. Weinrich left about 10:00 and Pompey left about 11:00, and at that time there was no conversation with reference to girls.
Pompey's sister testified on Pompey's behalf that she lived at 837 Montrose with her husband and two children; that Pompey had lived with them ever since he had come out of the penitentiary seven months before, and that he slept in the living room. She testified that on October 7 Pompey came home about 11:00 p.m. and went to bed shortly afterwards; that at 6:00 the next morning Weinrich rang the doorbell; that Pompey went to the door and she heard him talking to Weinrich. He then came back and told her it was Weinrich and that he, Pompey, had to leave. He got dressed and left.
Leonard Johnson, a policeman assigned to Internal Investigation in the Chicago Police Department, was called by the State as a witness in rebuttal, and he testified that he had made an investigation with regard to a complaint concerning a Chuck Foster; that he showed Weinrich photographs of the officer who had previously arrested him and he could not identify any of the pictures.
An indictment for theft (Ill. Rev Stats 1961, c 38, § 16-1) was returned against the defendant. The defendant was given a copy of the indictment and a list of the names of the witnesses. On November 14, 1962, he was arraigned and, through his counsel, made an oral motion for the State to produce a list of witnesses who would be called to testify on behalf of the State. The court properly denied the motion. The defendant did not comply with the rule of the Criminal Court. There is nothing in the record which would indicate that the requirements of the rules were waived by the People.
The case was set for trial December 12. On that date the defendant made a written motion asking for a list of the jurors and the names of the witnesses, which motion was denied by the court. The defendant then moved for a bill of particulars, which motion also was denied by the court. Again, in making the written motion of December 12, the defendant did not comply with the rules of the Criminal Court, nor did he serve any notice upon the State's Attorney. At the same time, the defendant filed a written motion for a bill of particulars without complying with the rules of the Criminal Court. The court denied the motions. The State's Attorney furnished the defendant with a list of jurors. The Illinois Criminal Code (Ill. Rev Stats 1961, c 38, § 729) provides that every person charged with ...