Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. HERBERT R. FRIEDLUND, Judge, presiding.
MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
CHARGE: Attempted burglary. *fn1
DEFENSE AT TRIAL: Defendant denied guilt.
JUDGMENT: After a trial before a jury and the return of a verdict of guilty, the court sentenced the defendant to a maximum of 14 years and a minimum of 5 years.
1. Improper exhibits were allowed to be taken by the jury to the jury room.
2. An oral confession by the defendant was improperly considered by the jury.
3. The prosecutor improperly expressed his personal opinion to the jury that the defendant was guilty.
4. Defendant was not proved guilty beyond a reasonable doubt.
EVIDENCE: Testimony of State's Witnesses.
Aaron Smith testified that he lived at 3153 West Fulton Street, in Chicago; that he had a radio and TV repair shop at 257 North Kedzie Avenue, which the defendant attempted to burglarize on November 28, 1964. He stated that there had been previous attempted burglaries, the last one having been on September 28 or 29, 1964. He stated that he had installed an "intercom" connection between his shop and his home, so that any noises occurring in the shop could be heard over the intercom. He testified that when he left the shop on November 28, 1964, he had properly secured all the doors and locks; that later when he was preparing for bed he heard a loud pounding noise coming from the shop over the intercom; that he told his wife to call the police, then he took a gun and a flashlight and went to the shop. He stated that he went down the "gangway" back of the shop and saw a man standing at the back door, with his arms over in the door between the bars, working on the door, trying to get at the lock behind a piece of metal placed in the door to protect the lock; that he told the man to turn around and put his hands up, and the man turned and put his hands up the side of the wall. Smith then identified the defendant as the man in question. His testimony continued as follows: He turned to see if anyone was with the defendant and at that time he saw the defendant about to strike him with a "shiny object" [the hacksaw which had been introduced in evidence]; he then shot the defendant in the left arm. The defendant fell, then got to his knees and said: "Please don't call the police because I just got out of jail and I don't want to go back. I can't wait until the police come." Smith told him he couldn't let him go because he had shot him.
Smith identified the State's exhibits, a hacksaw, a drill bit and a screwdriver. On cross-examination he testified that he saw the defendant's hands over inside the bars, working at the 12" x 12" plate that shields the lock to prevent burglary; that he saw the screwdriver in the defendant's hands, but did not see what he did with the screwdriver when he struck at Smith with the hacksaw. Smith stated that two or three squad cars arrived and he gave them a statement; he said he did not tell the police that he saw the defendant chipping mortar, nor did he make any statement either at the preliminary hearing or to the State's Attorney that he saw the defendant chipping brick. He stated that after he shot the defendant he did not see what happened to the hacksaw or the screwdriver.
Ronald Nadile, a police officer, testified that early in the morning of November 28, 1964, in response to a call he went to the rear of 257 North Kedzie, where he was met by a police sergeant who had the defendant in custody. Nadile examined the premises and identified People's Exhibit 1 as a photograph of the rear door of the premises. He testified that he observed fresh marks near the hasp where bricks had been knocked out; that he found the hacksaw and the drill bit in a puddle of water, and the screwdriver a little distance from the other tools. He took the tools to the police station where they were inventoried. He stated that the evidence technician made a sketch of the area where the bricks had been chipped, which picture was introduced in evidence and which will be discussed later. Nadile stated that he noticed there was fresh concrete on the end of the drill. He then stated that the defendant was taken to the hospital by the police.
Calum MacRitchie, a police officer, testified that on November 28, 1964, at about 3:15 a.m., he went to the location in question in response to a radio call, and found that all persons involved had been taken to the police station; that he made a cursory examination of the premises and found that mortar had been taken from some bricks around the center of the door hinge; that he returned later and made a more thorough examination. In his report MacRitchie had stated that bricks had been removed from the ledges of the protective gate and the rear door of the store; that the bricks which were removed were split. He further testified that the next day he saw the defendant at the Bridewell Hospital; he believed he was sitting up at the time; that he questioned the defendant as to where he had been on the night in question; that the defendant said he had been drinking in a tavern next to a currency exchange at Flournoy and Kedzie; that he left the ...