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People v. Tomaszek

DECEMBER 7, 1964.




Writ of error to the Criminal Court of Cook County; the Hon. F. EMMETT MORRISSEY, Judge, presiding. Affirmed.


Rehearing denied December 30, 1964.

On December 2, 1963, after a jury trial in which Gerald George Tomaszek was found guilty of the offense of theft, he was sentenced to the penitentiary for a term of from four to five years. After pronouncing sentence on the theft charge, the trial court then revoked probation granted defendant in 1960 on a charge of attempted burglary and on that charge sentenced defendant from four to five years, both sentences to run concurrently. Defendant appeals from the theft conviction and from the revocation of his probation on the attempted burglary charge.

As to the theft conviction, defendant contends error because (1) the jury verdict did not contain a finding of the value of the property stolen; (2) there was a fatal variance between the indictment and proof as to the ownership of the property stolen; and (3) prejudicial conduct by the State's Attorney, which violated defendant's constitutional privilege against self-incrimination, when the State's Attorney placed eyeglasses, in evidence, on defendant during cross-examination. As to the probation revocation, defendant contends error because the order was not entered by the judge who granted the probation and because of the summary nature of the hearing.

In September, 1962, defendant was indicted for the offense of theft of property "of the value of more than one hundred fifty dollars, the property of Donald S. Kanak, intending to deprive said Donald S. Kanak permanently of the use and benefit of said property." The jury verdict found the defendant "guilty in manner and form as charged in the indictment."

The record shows that on September 12, 1962, Donald Kanak, while making a sales call, parked his company's 1962 Cadillac near his customer's store. In the trunk were a typewriter, a dictating machine, and two adding machines. When he returned, the car was gone, and he immediately reported the theft to the police.

Within an hour, police officer, John Hinchy, driving an unmarked police automobile, observed defendant, whom he had known for three years, driving a 1955 Oldsmobile, with another man in the car, sitting to his right. Defendant looked in Officer Hinchy's direction, put the car in reverse, and at a high rate of speed made a "U" turn over a median strip. The officer also made a "U" turn, put on his headlights and spotlight, and pursued the Oldsmobile through a red light at a speed of 65 to 70 miles an hour. The Oldsmobile attempted to make a turn, skidded and came to a stop, with the police automobile stopping behind it. Officer Hinchy approached on foot, and from the rear of the car shouted he was a police officer, to get out of the car, and that they were under arrest. Defendant started the car in reverse motion, toward the officer, who jumped aside and fired several shots at the right rear tire, deflating it. The car pulled away at a high rate of speed, with Officer Hinchy pursuing it, until he lost sight of the car.

As the officer continued looking for the Oldsmobile, some man waved in the direction of a school, which the officer entered, found defendant and took him into custody. On searching defendant, the officer found two sets of keys. A short time later, he found the 1955 Oldsmobile in a nearby alley, and in it was a typewriter and adding machine. With the keys taken from the defendant, which fitted the trunk and the ignition of the car, he opened the trunk and found several office machines, a tire and wheel, and a briefcase.

Donald Kanak testified that he was employed by Kanak & Sons, Inc., sold office machines, and was its treasurer. On September 12, 1962, he placed items of office equipment in a 1962 Cadillac, which the corporation owned and for which it paid $5,200. While he was making a sales call, the car was stolen. That afternoon, at "5th Area, Burglary," he identified a typewriter, two adding machines, a dictating machine, a briefcase, and a tire, as articles that were in his care, custody and control from the time he left Kanak & Sons until the Cadillac was stolen. The items were then returned to him. He identified the articles by means of a police photograph in evidence. He testified that the value of the typewriter was $279; the value of the dictating machine was $250; the value of the two adding machines was $350 and $335. He stated that all of the items were the property of Kanak & Sons with the exception of the typewriter.

Two other police officers testified that, in another squad car, they joined Officer Hinchy in pursuit of the Oldsmobile. One of them identified defendant as the driver and as the man who, while fleeing from the Oldsmobile, dropped a valise in which was found a pair of eyeglasses. At that time, defendant was not wearing glasses.

Officer Hinchy testified defendant was wearing eyeglasses when he first saw him in the Oldsmobile, but that defendant was not wearing glasses when arrested. Another police officer testified that at "Area 5" headquarters, he questioned defendant about a pair of eyeglasses found in the valise dropped by defendant. He asked defendant, "Are these your glasses?" and defendant said they were. He further said, "You need them, don't you?" and defendant said, "Yes, I do." Defendant then put on the glasses for a few minutes. The officer then returned the glasses "to inventory." On cross-examination, this officer testified that the glasses were "prescription glasses," and after an investigation, he was unable to identify the glasses "as belonging to or prescribed for the defendant." Over objection, the eyeglasses were received in evidence as People's Exhibit 5.

Defendant testified in his own behalf. On the day in question, he had worked from eight o'clock in the morning until noon. While looking for an apartment, he heard a lot of shouting and turned around to see a man, dressed in civilian clothes, with a gun in his hand. Defendant started to run down the street, and as the man started to fire the gun, defendant ran into the school. "I had seen Sergeant Hinchy on two or three occasions before this time. I saw him in a tavern where I go once in a while. . . . I was walking out of the door of the Seneca High School when Sergeant Hinchy was walking in. He grabbed me, put a gun on me, threw me against the wall, searched me and took my house keys. Exhibits 7 and 7a are the keys for my mother's house that Sergeant Hinchy took from me. The other set of keys that are on a separate chain were not taken from me. I saw Mr. Hinchy in the Seneca High School but I had not seen him before that day."

Defendant denied any knowledge or control of the 1962 Cadillac or of any of the articles identified as being stolen. He denied operating a 1955 Oldsmobile or any other car on September 12. When arrested, he was wearing "prescription sun glasses." He denied ownership of the eyeglasses previously identified as People's Exhibit 5, or that he had told any police officer that he needed them or owned them. On cross-examination, and at the request of the State's Attorney, and over objection, defendant put on the glasses (People's Exhibit 5) and was questioned as to their type and his ability to use them.

Initially, we consider defendant's contention that the verdict is void because it failed "to contain a finding that the value of the articles exceeded $150." Defendant cites the penalty provision of the criminal Code of 1961 (Ill Rev Stats, ...

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