Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. WALTER P. DAHL, Judge, presiding. Judgment
affirmed and cause remanded with directions.
MR. JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT.
Rehearing denied June 12, 1968.
The above-named defendants were indicted for the offense of theft in that they knowingly obtained and exerted unauthorized control over certain property of the Louis Zahn Drug Company, intending to permanently deprive the owner of the use and benefit of said property in violation of the Criminal Code. (Ill. Rev Stats 1963, c 38, § 16-1(a).) Upon trial by jury, Robert Vaughn was found not guilty. The other four were found guilty as charged. Marino has filed a separate appeal, No. 51,023. Rago, Monteleone and Pettit, who will at times be collectively referred to as "defendants" prosecute this appeal together.
Defendants raise the following points on appeal:
1. The Court erred in denying their motion to suppress;
2. The Court erred in permitting improper and prejudicial conduct in cross-examining the Court's witness, Officer Prokop;
3. The State was guilty of prejudicial conduct in repeatedly attempting to impeach its own witness Sgt. McLean;
4. The State was guilty of prejudicial conduct in argument to the jury and the Court erred in failing to rule on objections made by the defendants;
5. The State failed to prove the defendants guilty beyond a reasonable doubt and to a moral certainty;
6. The Court erred in permitting the State to prove by State's witness Nowak that she could not say defendants were not on the premises;
7. There was a fatal variance between the proof and the indictment;
8. Defendants were prejudiced by improper publicity before and during the trial;
9. Defendants were deprived of a fair and impartial trial;
10. The State failed to prove that the fair cash market value of the goods at the time of the theft exceeded $150.00; and
11. The Court erred in refusing to conduct a hearing in mitigation.
Robert Brown was an employee of the Louis Zahn Drug Company. He was in charge of storing merchandise in the Zahn warehouse located in Melrose Park. On Friday, October 4, 1963, he received a trailer of Mead Johnson pharmaceuticals, but because of the lateness of the hour, unloading the trailer was delayed until Saturday. On Saturday, Brown started the unloading process. The top cartons of each stack were marked either "E-24" or "E-25" with a brush type pen. This was so the other employees would know where to place the boxes in the warehouse. About 80 percent of the trailer was unloaded and stacked on an enclosed loading platform when Brown left the warehouse on Saturday night. He checked and locked all the doors and activated the alarm system.
On Monday morning, Brown reported to work to find the merchandise that had been on the loading platform was missing, as well as the Mead Johnson trailer. The police were notified and subsequently on April 13, 1964, they recovered and returned certain merchandise back to the Zahn Warehouse. Brown identified 25 of the cartons as containing his warehouse location markings. Brown, who had experience in pharmaceutical ordering and merchandising, testified that the fair cash market value of the 25 marked cartons was $3,000.
Eugene Marino owned a home on a residential street in the North end of Northlake, Illinois. There was a driveway along the West side of the house, leading to a two-car garage. On April 13, 1964, a neighbor of Marino's, Mrs. Helen Nowak, observed Marino and three other persons in Marino's backyard. She testified for the State at the hearing on the motion to suppress and in the main trial that Marino opened his garage door and the other men started hurriedly loading cartons into a truck which was parked in the driveway. Mrs. Nowak further testified that this looked suspicious to her so she called Chief Heggaton of the Northlake Police. She saw the police arrive and fire shots at the men who ran when they were ordered to halt. The police chased after the men as they jumped over the back fence. Mrs. Nowak put in a second call to the police and then returned to her window. She saw Marino run from the garage to his house and later emerge with his hair ruffled and his shoes untied.
Mrs. Nowak could not identify any of the men who were in the backyard, except Marino. At the trial, she identified defendant Rago as the man who was captured by Sergeant Prokop, one of the Northlake police officers, although on a prior occasion she identified defendant Monteleone as the main arrested by Sergeant Prokop.
One of the defense witnesses was Isabel Marino, wife of defendant Eugene Marino. Mrs. Marino testified that the garage behind her house was rented to a Mr. Anderson at the time of the events involved in the instant cause. A rent receipt book and income tax returns showing the reporting of such rental income were introduced into evidence. She further testified that Anderson used the garage for storage, not for a car. Mrs. Marino stored her bleach and soap in the garage as well as garden tools and her children's bicycles. She had noticed boxes, that she claimed did not belong to her, stacked up in the garage. Her husband, she said, parked his car on the street and she denied that he ever removed any goods from the garage and placed them in his car.
In rebuttal, the State recalled Mrs. Nowak to the stand. A week prior to the events which gave rise to the arrest here, Mrs. Nowak saw Marino go into the garage. Another man drove his car up to the garage and then drove off, Marino following in his own car. This procedure had been repeated often during the first three months of 1964 and in 1963.
Chief Heggaton of the Northlake Police Department testified on the motion to suppress that he recognized Mrs. Nowak's voice when she called him on April 13, 1964, and informed him of the suspicious activities around the Marino garage. Heggaton and Sergeant Prokop had discussed the fact that stolen goods were being stored somewhere in the North end of Northlake. Prokop and Sergeant McLean, another Northlake police officer, were sent to investigate and Heggaton followed about ten minutes later. Upon arriving on the scene Heggaton saw the police car used by Sergeants Prokop and McLean and a large truck in Marino's driveway. The back of the truck was completely open and Heggaton identified a photograph showing boxes of pharmaceuticals stacked in the truck.
Sergeant Henry Prokop was called by defendant Monteleone to testify on the motion to suppress. Prokop related that he was dispatched by Chief Heggaton to investigate a "suspicious" situation at 208 N. Major Drive. Sergeants Prokop and McLean drove to the address in a squad car. They had no search warrant. Prokop also denied that Chief Heggaton had discussed with him the fact that stolen merchandise was being stored somewhere on the North end of Northlake.
Upon arriving at the scene, Prokop drove the squad car on to the driveway, stopping near the front of the house. At first he saw nothing suspicious but the truck was at the back of the driveway, about two feet away from the garage. A man peeked out from the rear of the truck and as the officers emerged from their car, three men started running.
The officers drew their weapons and McLean fired 2 or 3 shots in the air. The men ducked behind the house and were out of sight for an unspecified period of time. Prokop, however, did testify that everything that happened did so in very quick succession. Two figures leaped over the back fence and Prokop gave chase. About one block away he arrested defendant Pettit. Prokop did not remember if Pettit was standing still or running at the time he arrested him. He also claimed he did not know of any crime that had been committed.
During the course of the trial, Prokop was called as a Court's witness because his lawyer informed the State's attorney that Prokop's answers to certain questions would be different than the answers he gave before the Grand Jury. Although defendants objected at the trial to the ...