Writ of error to the Criminal Court of Cook County; the Hon.
HUGO M. FRIEND, Judge, presiding. Judgment modified and affirmed.
MR. JUSTICE LYONS DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 1, 1965.
On November 26, 1934, Robert Cage, was convicted of murder and sentenced to a term of 99 years in the penitentiary. Defendant brings this writ of error for a review of the record.
On the evening of September 9, 1934, George Torres and Charles Harakopas, the deceased, worked in a candy store at 4701 South State Street. Torres testified for the State that he and the deceased were clerks in the candy store; that at about 1:00 a.m. defendant came in and asked the deceased for cigarettes; that one minute later the co-defendant, Edward Smith, walked in, pointed a gun at him (Torres) and told him to "stick 'em up"; that defendant pointed a gun at the deceased and then walked behind the cigar counter and struck the deceased with his fist; that the deceased backed out from behind the cigar counter and defendant followed him with the gun, facing him and walking towards him; that the deceased backed up some more and then turned toward the rear of the store; that defendant, still following the deceased struck him with his fist once or twice and then shot him twice; and that at the time the shots were fired the co-defendant Smith was taking money out of the cash register.
Torres further testified that he next saw defendant and his co-defendant on Monday, September 24, 1934, in a lineup at the Wabash Avenue Police Station and that he saw them again on September 26, 1934, in the Captain's office in the same police station, together with some police officers and the prosecutor. The prosecutor asked Torres if defendant and his co-defendant were the men present in the store, and he said they were. The prosecutor then asked him if he saw the man who did the shooting and he replied, "Robert Cage." He also stated that the two defendants did not say anything. Torres concluded his testimony on direct examination by stating that he had been a witness at the Coroner's Inquest about two days after the shooting, and at the inquest, in response to the question of whether or not he could identify the two men, Torres answered, "I don't know whether I could or not. . . ."
On cross-examination Torres testified that on Monday, September 24, 1934, he went to the Wabash Avenue police station at about 1:00 o'clock in the afternoon; that he was taken back to a cell room where he saw nine or ten men lined up facing him with their backs to the bars; that there were police officers with him at the time; that he did not remember who the police officers were or how many were present and didn't know whether any of them were present in the courtroom; that he saw Cage there at that time; that Cage did not say anything to anybody at that time; and that after looking at the men in the lineup for approximately fifteen minutes he (Torres) left with the police officers. Torres further testified on cross-examination that two days later, on September 26, 1934, at about 1:00 p.m., the police took him to the Captain's office in the Wabash Avenue police station; that he was told that the State's Attorney wanted to see him; that when he arrived there, the prosecutor and some police officers were present; that the prosecutor questioned him about half an hour before defendant and co-defendant were brought in handcuffed; and that he did not remember what questions the prosecutor asked before the defendants were brought into the room.
Four witnesses were permitted to testify during the prosecution's case in chief, that they had seen the defendants together in their places of business on other occasions, on dates after the shooting. The arresting officer testified that when Torres identified the defendants in the Captain's room on the 26th, they remained silent. On cross-examination he testified that the defendants had been arrested on September 22, 1934, and had denied the crime at all times.
Defendant's theory of defense was alibi. He presented evidence that he was playing cards in the apartment of a friend until shortly before 1:00 a.m. on September 9, 1934. He further testified that the prosecutor would not let him speak at the time he was identified by Torres. During his examination in chief, defendant was not asked whether he knew his co-defendant, Edward Smith, or one John Myrick. On cross-examination he answered, over objection, that he did not know either man. He also denied knowing the four merchants who had testified that they had seen the defendants together in their stores and he further denied that Myrick, Smith and himself were together, in their respective stores.
In rebuttal, the prosecutor had John Myrick brought into the courtroom. Three of the merchants again testified that Myrick and the two defendants were together, in their respective stores, on the dates previously mentioned by them. Motions to strike the testimony of each witness and instruct the jury to disregard it were denied. The jury found the defendants guilty of murder and sentenced each of them to 99 years in the penitentiary.
For an intelligent and understandable consideration of this case, we believe that a chronological background leading to its present status will aid in comprehending the reasons for the long delay involved in this appeal.
1. Indictment No. 74427 charged petitioner Robert Cage and one Edward Smith with the murder of one Charles Harakopas on September 9, 1934.
2. On November 9, 1934, the jury found both defendants guilty of murder and fixed the punishment of each to a term of 99 years in the penitentiary.
3. On May 14, 1946, the defendant, Robert Cage, and Edward Smith filed a writ of error pro se, in the Supreme Court of Illinois, on the common law record. Judgment of conviction was affirmed for the reason that a bill of exceptions was not included in the record. The Supreme Court of the United States thereafter denied certiorari.
4. On August 18, 1952, Edward Smith filed a petition under the Post Conviction Hearing Act. (PC No. 333)
5. In December 1952, the defendant, Robert Cage, filed a petition for writ of error under the Post ...