Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. RICHARD A. HAREWOOD, Judge, presiding.
Judgment reversed and remanded for new trial.
MR. PRESIDING JUSTICE LYONS DELIVERED THE OPINION OF THE COURT.
This is an appeal by the defendant, Curtis Hahn, from his conviction in a jury trial for the offense of burglary, for which he was sentenced to a term of not less than four (4) nor more than eight (8) years in the State Penitentiary. Subsequent to the return of the jury verdict, defendant made alternative motions for either judgment notwithstanding the verdict or a new trial, both of which were denied, and from which he brings this appeal.
Summarized, this case concerns itself with the commission of a burglary during the daylight hours of January 16, 1964, at the residence of the complainant, one Alexander D. Moser. The victimized premise was a first-floor apartment in a building located at 6420 North Newgard Avenue in the City of Chicago, access to which had been gained by tampering with the rear door in Moser's absence. An immediate inventory of personal belongings conducted by Moser and his wife upon their discovery of the crime revealed numerous pieces of men's and ladies' jewelry, some assorted men's sportswear, a brown duffel bag, as well as several credit cards, to be missing. Subsequent police investigation led to the arrest and joint indictment of defendant and one Charles Randolph Fiala, the latter entering a plea of guilty to the charge.
Preliminary to trial, a hearing was conducted on defendant's motion to suppress certain evidence alleged to have been seized as a consequence of an unlawful search of defendant's apartment. At that hearing, Detective Joseph Nolan testified that on January 24, 1964, he and Detective Madden approached defendant's apartment at 505 West Belmont Avenue, where they knocked and announced their office. After some pause, defendant opened the door and consented to their entrance. Once inside the one-room apartment, Nolan stated that he observed in open view several credit cards atop a dresser, four of which visibly bore the name Alexander Moser. Questioned concerning his possession of the cards, defendant denied having any knowledge of them, and was then placed under arrest. A search of the room, over defendant's protests, produced a total of 18 such cards, some jewelry, assorted clothing, a BB gun and BBs, an ice pick as well as numerous unopened packages bearing shipping labels addressed to persons other than defendant, most of which were in various secluded locations. These items were all seized by the officer. In the interim, Detectives Casey and Spatz, who had accompanied Nolan but remained downstairs, discovered that suspect, Fiala, had also resided in the same building. A search of his vacant apartment suggested a hurried departure by him.
Testifying in his own behalf at the hearing, defendant asserted that four officers gained entrance to his apartment at gunpoint and under false pretense. He said the police handcuffed him, struck him when he denied knowing the whereabouts of Fiala, and ransacked the room. Defendant, however, admitted to his possession of the chattels seized and that he lied when telling the officers he knew nothing of Fiala. Thereupon, the court denied defendant's motion to suppress.
Moser, at the trial, testified that two days after the burglary, an Officer Muller arrived at the scene to investigate. Borrowing an ice pick from him, the witness stated that the officer demonstrated how the rear door may have been unlocked by insertion of the pick through a 1/2" or 3/4" in diameter hole in the window immediately adjacent to the door. Moser stated that despite his long tenure in the apartment he had never noticed the hole, nor could he offer an explanation as to how it was caused. He had noticed, however, small splinters of glass on the window ledge just below the hole.
Thereafter, on January 26, 1964, Moser testified that he recognized a red and black shirt worn by defendant in a police lineup as his own, though conceding there were others identical to it in the store when it had been originally purchased. Moser admitted to his inability to personally identify defendant as he had observed no one in his apartment. The complainant informed the court that he had subsequently that day recovered some of his belongings (jewelry, clothing, duffel bag and credit cards) from among items in the possession of police authorities. Thereafter, over objection of counsel for defendant, Moser was asked:
"Q. . . . After your burglary, . . . did you receive bills for any items purchased with your stolen credit cards?
"Q. Now, as specific as you possibly can be, would you tell us, please, the total amount in dollars of purchases made with your credit cards from the time they were taken from you until the time that you got them back?
"A. It was around 27 somewhere around 25 to $2700."
No effort was made, at any juncture, to introduce such bills into evidence.
The testimony of Officers Nolan and Madden that followed was essentially the same as that given by Nolan at the pretrial hearing and was, in all but one minor respect, corroborative. Both witnesses positively identified People's Exhibits Nos. 1 and 2 (ice pick and BB gun with BBs respectively) as those confiscated from defendant's apartment on January 24, 1964.
Coindictee Fiala, called as a State's witness, denied any participation in the actual burglary of the Moser residence, claiming to have misunderstood the indictment when entering his plea of guilty. He professed to have only been guilty of receiving a radio and two credit cards from defendant, with knowledge that they were ...