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People v. Smith

NOVEMBER 5, 1965.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

HAROLD D. SMITH (IMPLEADED), DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Winnebago County; the Hon. ARTHUR V. ESSINGTON, Judge, presiding. Judgment affirmed.

MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.

The defendant, Harold D. Smith, prosecutes this appeal following a jury verdict finding him guilty of armed robbery. On June 18, 1963, at approximately 9:30 p.m., a young woman entered the Sta-Von Tap in Rockford, Illinois, while four people, including the defendant, who had been in the tavern about ten minutes, were sitting at the bar. The woman brandished a revolver and said, "This is a stick-up." She ordered the bartender to lie on the floor, which he did; pointed the gun at one of the patrons and told him to get the money, which he refused to do; and then pointed the gun at the defendant and said, "Hey you, Skinny, put the money in the bag." The defendant thereupon filled the bag with money from the cash register; asked the woman not to shoot; and threw the bag to her. She then ran from the tavern.

The police were called; came to the tavern and obtained a description of the robber; then left and returned shortly with Marilyn Moriarity, whom all of the witnesses, with the exception of the defendant, immediately identified as the robber.

Moriarity was arrested in the apartment of Wanda Newman, about one block from the scene of the robbery. Prior to the robbery, Moriarity and the impleaded defendant, Huntley, lived in the apartment across from Newman. Shortly after the robbery, the defendant went to Newman's apartment and spent the night. He was arrested the following day. The bartender testified that a bag found in Newman's apartment was very similar to the one used in the robbery. The defendant also had been in Newman's apartment shortly before the robbery. The defendant, Moriarity and Huntley had frequented the Sta-Von Tap on various occasions prior to the robbery.

Four days after the robbery, the defendant's mother found $788 in her apartment. She immediately notified the police. A total of $860.73 had been taken in the robbery. The defendant had not been employed prior to the robbery.

Moriarity testified as a defense witness, denying any implication in the robbery. For impeachment purposes, the court admitted in evidence portions of Moriarity's inconsistent prior written statement and the testimony of a witness that he saw Moriarity dangle a string from her jail cell into the cell below and heard her say, "Tell Huntley and Smitty to plead not guilty and I will say they were not in on it."

The defendant has raised numerous grounds for reversal: we shall consider the substantial errors in the order presented. (Ill Rev Stats 1963, c 38, par 121-8). He first suggests that the trial court was without jurisdiction to try the case. This contention is based upon Ill Rev Stats 1963, c 146, § 26, which provides that in any case where there is more than one defendant, any defendant desiring a change of venue shall notify the other defendants as well as the State's Attorney. Upon presentation of the application for change of venue, the judge shall then ask the other defendants if they believe any judge or any two judges to be prejudiced against them, and, if so, the judge shall continue the cause for one day to enable them to also file an application for change of venue. In this case the defendant and the impleaded defendants, Moriarity and Huntley, all filed separate petitions for change of venue. Each petition contained a different combination of two of the three circuit judges, who the respective petitioners believed to be prejudiced against such defendant. The defendant's petition was acted upon first and was granted. The defendant argues that the failure of the court to act upon all three petitions simultaneously, and thereupon to remove all three judges from the case, constituted a violation of the statute.

This argument misconstrues the purpose of the statute as well as what actually happened in the case. The statute was designed to give all of the defendants, who are to be tried together, an opportunity to present a petition for change of venue. In this case, the other defendants had already filed their petitions for change of venue by the time defendant Smith filed his. All of the defendants were represented by the same counsel and each of them had also filed a motion for severance. At the same time the court granted defendant Smith's petition for change of venue, it also granted the motion of each respective defendant for severance. Thus, there was no reason to hear the petitions for change of venue together. The defendant obtained the exact relief for which he had petitioned — a removal of the case from the two judges named in his petition for change of venue — as well as a severance, as prayed in his motion. His complaint in this respect is without merit.

The defendant also contends that the record is replete with examples showing the hostility and prejudice of the trial judge toward him. We recognize that jurors are ever watchful of the attitude of the trial judge; that they may discern any disbelief or hostility on his part; and that such conduct on the part of the trial judge is apt to influence the jurors in arriving at their verdict. To the end that each person accused of a crime may receive a fair and impartial trial by a jury, the trial judge in a criminal case should refrain from conveying to the jurors, by word or deed, his opinions on ultimate factual matters, the credibility of witnesses and the weight to be given to their testimony. People v. Santucci, 24 Ill.2d 93, 98, 180 N.E.2d 491 (1962).

Defendant cites three instances evidencing that the record is "replete" with examples of prejudice and hostility. In the first instance, the State's Attorney objected to defense counsel commenting on the evidence in the course of cross-examination, and the court sustained the objection. Defense counsel then said, "I understand that the court can comment," to which the court replied affirmatively. Defense counsel then said, "I wish the court would," to which the court replied, "I can comment on the evidence and I think it is not material to this case." The second illustration occurred when defense counsel was cross-examining a witness relative to the physical characteristics of an alley, and the court interposed, "This is absolutely immaterial in this case, Mr. Snively. Why spend time on this monkey business." Defense counsel then asked the court if he was prejudiced against him, to which the court replied that he was not. The last instance followed an exchange between the court and defense counsel after an objection of said counsel was overruled. The court stated, "Do I have to be any more specific with you, Mr. Snively? Okay."

[3-6] While the trial judge must be cautious to conceal his impressions or feelings, he must conduct the trial so that it proceeds with reasonable dispatch and at the same time maintain the dignity and order of the courtroom. Both the State and the defendant must be given a full and complete opportunity to present their respective cases in full. Such requirements are difficult of attainment, and particularly so if the trial judge permits himself to be sidetracked or led astray by the provocation of counsel. It would be a dangerous precedent to permit counsel to take advantage of statements of the trial court which were either invited or provoked by such counsel. People v. Sleezer, 9 Ill.2d 57, 61, 62, 136 N.E.2d 808 (1956); People v. Westrup, 372 Ill. 517, 520, 25 N.E.2d 16 (1940). We do not believe that the court's comments were such as to convey to the jury a feeling of hostility or prejudice toward the defendant and thereby deny to him a fair trial, or to render unavailing the subsequent instruction that the court had not expressed an opinion on the facts of the case or the credibility of the witnesses.

The defendant next asserts that the court erred in admitting into evidence the cloth bag found in Wanda Newman's apartment and in admitting into evidence the money found in the apartment of the defendant's mother, in that the former was not properly identified and the latter was neither properly identified nor found in the defendant's possession. As to the cloth bag, the bartender testified that it was the same size and color and "very similar" to the bag into which money had been placed during the holdup. It was found in the apartment where Moriarity was arrested shortly after the robbery and where the defendant was later in the evening. We believe that the bag was sufficiently identified and connected with the defendant and the crime to permit its admission into evidence. It was then for the jury to weigh and determine, as a matter of fact, the question of the identity of the bag and its effect as proof, if any. People v. Weaver, 18 Ill.2d 108, 113, 163 N.E.2d 483 (1959).

As to the identity of the money, which by its nature lacked characteristics sufficient to distinguish it from any other money, it is admissible if there are sufficient facts to connect it to the crime in question. It is then for the jury to determine as a question of fact, the identity of the money. People v. Weaver, supra. There is no legal requirement that the money must have been in the possession of the defendant in order for it to be admissible. The basic problem is relevance and the question is whether the evidence sufficiently connected the money with the crime and with the defendant to make it relevant and of any probative value. People v. Jones, 22 Ill.2d 592, 599, 177 N.E.2d 112 (1961); People v. Ashley, 18 Ill.2d 272, 279, 280, 164 N.E.2d 70 (1960).

The money was found in the apartment of the defendant's mother, four days after the robbery; it was not hers; it was relatively close to the amount of money taken in the robbery; the defendant had not been employed prior to the robbery. We believe that the circumstances of this case sufficiently connected the money with both the defendant and the crime to render it relevant and admissible. It was then for the jury to determine whether or not it believed this to be ...


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