Appeal from the Criminal Court of Cook County; the Hon.
RICHARD A. HAREWOOD, Judge, presiding. Reversed.
MR. PRESIDING JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.
Bobby Barfield was found guilty of burglary in a non-jury trial and was sentenced to the penitentiary for a term of four to ten years.
He contends that his conviction should be reversed because an oral and a written statement made by him were improperly received in evidence, that he was not proven guilty beyond a reasonable doubt, that the trial court failed to conduct a preliminary hearing on the competency of his confessions and that prejudicial error was committed in the reception of evidence.
A tavern in the City of Chicago was burglarized during the early morning of September 21, 1963, and about $209 was taken. Barfield's aunt was employed at the tavern and Barfield, who arrived in Chicago by motorcycle from California on September 20th and departed on the 21st for Tennessee, visited her at the tavern on the night of the 20th.
On October 8, 1963, Barfield was arrested on a vagrancy charge in Miami, Florida. He was taken to jail and when questioned by the police said that he was "on the lam" and had "knocked off" a tavern in Chicago. He gave the date of the crime and the name and address of the tavern where his aunt worked. The police officer who interrogated him was unaware of the Chicago burglary until informed about it by Barfield. On October 10th, in a written statement signed by him, Barfield confirmed his oral statement.
At his trial Barfield, who had a criminal record, denied the burglary. He explained his revelation to the Miami police by stating that while he was in Tennessee visiting his sister, she told him that she had received a telephone call from their aunt in Chicago who said that he was suspected of the burglary and that a warrant might be sworn out for his arrest; that when the police asked him if he was wanted for any crime he replied that he didn't know for sure but he possibly might be wanted for questioning about the tavern burglary.
Only two witnesses testified for the State: the owner of the tavern and the police officer from Miami who had taken the oral and written statements. The tavern owner described the premises before and after the burglary. She said she knew Barfield and that he and a friend of his were in her tavern the night before the burglary. She did not know who broke into the tavern.
The officer testified that he was the only one who talked with the defendant when the oral confession was made but that a Sergeant Smith, a police matron, and three or four jailers were present. He said the written statement was taken two days later in the presence of Officer D.G. Martin and a police secretary. Although the written statement consisted of five typewritten pages, only one question concerned the burglary:
"Q. Do you also recall at this time, in our conversation in the city jail your giving me information that you had broken into the Roundup Tavern at 6846 North Western Avenue, Chicago, Illinois, approximately the 21st of September 1963?
At the defendant's arraignment he was furnished a copy of this signed statement and the names and addresses of the persons who had witnessed his oral and written statements. The lists contained but two names: A.B. Rossman [the officer who testified] and D.G. Martin. Omitted from one list were the names of Sergeant Smith, the matron, and the jailers; omitted from the other was the name of the secretary who recorded the statement.
Section 1 of Division XIII of the Code of Criminal Procedure provides:
"Whenever a written or oral confession shall have been made before any law enforcement officer . . . by any person charged with any crime, a copy of such confession, if written, together with a list of the names and addresses of all persons present at the time such confession was made shall be given the defendant or his counsel. . . . If such confession was not reduced to writing, then a list of the names and addresses of all persons present at the time the confession was made shall be furnished. . . ."
"No confession shall be admitted as evidence in any case unless the . . . list of names and addresses of persons at the time the confession was made is furnished as required by this ...