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Krantz v. O'neil

JULY 29, 1968.




Appeal from the Circuit Court of Cook County; the Hon. DAVID CANEL, Judge, presiding. Affirmed.


Plaintiff appeals from a verdict and judgment in favor of defendant, Albert O'Neil, a Chicago police officer, in plaintiff's action for personal injuries caused by the shooting of plaintiff by defendant while on duty. Plaintiff asserts trial errors and improper instruction of the jury.

On April 8, 1959, at about 10:45 a.m., Edward Przybylski, a cigar salesman, parked his car in front of a tobacco shop in Chicago and called his office to report he was being followed by three men in a 1958 Chevrolet. The defendant and Howard Rauhut, two plainclothes Chicago police officers, were dispatched to join Przybylski at the tobacco shop. From the shop defendant observed and recognized the plaintiff and his two companions, Edward Orlowski and John Kolman, parked nearby in a Chevrolet. Kolman left the car and walked down the street, where he stopped to examine and meddle with the automobile of Przybylski. When defendant stepped from the store to join Rauhut in an unmarked car, the Chevrolet's horn sounded, and Kolman rejoined the two men in the car. The Chevrolet then executed a U-turn, and the three men drove away, pursued by defendant and Rauhut. In the course of the chase, and after firing two warning shots in the air, defendant fired several shots at the Chevrolet. A final shot struck plaintiff in the head, leaving him permanently blinded. Plaintiff sued both police officers. At the trial the court allowed a motion for a directed verdict of not guilty as to Rauhut, and the jury returned a verdict of not guilty as to O'Neil. Plaintiff appeals from the O'Neil verdict only.

The contentions of plaintiff on appeal include: 1. The jury was improperly instructed. 2. Improperly admitted into evidence were: (1) the details of plaintiff's previous burglary conviction; (2) a transcript of plaintiff's previous burglary conviction; (3) testimony concerning a prior arrest and incarceration of the plaintiff; (4) photographs of items confiscated from plaintiff on a previous arrest; (5) police department records; (6) keys, lock picks and tools; and (7) testimony relating to the Chicago police department's regulations for the use of firearms.

Plaintiff, Leonard Krantz, testified that on April 8, 1959, at about 9:00 a.m., he, Orlowski and Kolman drove to plaintiff's home at 4417 North Canfield in Orlowski's automobile, a 1958 Chevrolet, where they made some measurements for the installation of a canopy. They then left for Western and Homer, where plaintiff and Kolman intended to do some work on a building owned by plaintiff. At Irving Park and Parkside, Orlowski stopped the car, and Kolman got out and walked east to a drugstore. After a few minutes Kolman returned to the car. Orlowski then turned left, and the three men drove north on Parkside back toward plaintiff's home. After going about two blocks north, plaintiff heard the roar of an engine and the sound of a gunshot. He turned around and saw that the rear window was shattered. He also saw two men wearing ordinary clothing and driving a 1955 Plymouth, which was without distinctive markings, mars light or siren. One of the men had a gun in his hand. After the first shot was fired, Orlowski accelerated from the twenty or twenty-five miles-per-hour speed at which he had been driving. About three-fourths of a block after the first shot, the Chevrolet in which plaintiff rode slowed down, and another shot was fired at it. It seemed that each time Orlowski slowed down, another shot would be fired. No gunfire was returned from the car in which the plaintiff rode, and the plaintiff was unarmed. When Orlowski slowed for a stop at Austin and Cullom, plaintiff raised up from the front seat where he had taken shelter from the gunfire. He faced the approaching car, from which the gunfire had come, with his hands up in the air. He saw a flash come from the gun and heard the sound of a shot. Then everything turned white and then black. Since that time he has been permanently blinded.

On cross-examination, plaintiff testified concerning a 1956 burglary indictment, to which he and Kolman pleaded guilty, and plaintiff was placed on probation.

Defendant and Howard Rauhut were called by the plaintiff as adverse witnesses.

Frank Walker, plaintiff's final witness, testified that at the time of the occurrence he was driving south on Austin near Cullom. He saw the '58 Chevrolet at the corner moving at less than fifteen miles per hour. At about the same time as he saw the car, he heard a shot. As the Chevrolet entered Austin, a Plymouth pulled around it. On the passenger side of the Plymouth he saw an arm and a gun. The Plymouth took a wide turn into Austin, and both vehicles came to a stop.

The first defense witness was Edward Przybylski, a cigar salesman, who lived in Harwood Heights in April 1959. He testified that on the morning of April 8, 1959, he was making deliveries and had cigars and sundries in his car worth about $500. He made a call in Melrose Park, where he observed three men in a '58 Chevrolet following him. He recognized plaintiff as one of the men, because a year earlier he had been followed by plaintiff, and he had called for the assistance of the Harwood Heights police. Przybylski then drove to a tobacco shop at 5616 Irving Park, Chicago, where he parked his car. Inside the shop he called his office and reported that he was being followed. He stayed in the shop across the street from his car for about twenty minutes. Defendant and Rauhut entered the tobacco shop through the back door. He told them about the men in the car which had followed him from Melrose Park. He pointed out the '58 Chevrolet as it passed the shop going west on Irving Park. Przybylski then left the shop and walked to a nearby drugstore. He then returned to his car and found it just as he had left it, and there were no marks on it.

The defendant testified that on April 8, 1959, at about 10:30 a.m., he and Officer Rauhut were assigned to investigate suspicious men following a tobacco salesman by the name of Przybylski. They drove to the tobacco shop at 5616 Irving Park Road in a marked police car. Przybylski then told him of the men in the '58 Chevrolet and pointed out the car and stated that he had caused the plaintiff to be arrested about a year earlier. The defendant recognized the three men. He had seen Kolman and the plaintiff while they were held at the 33rd District police station about a year previous to the occurrence.

Defendant further testified that Rauhut returned to the police station for an unmarked car. While Rauhut was gone, he told Przybylski to make a call on the southwest corner of Irving Park and Central. After Przybylski left, defendant saw the Chevrolet park on the south side of Irving Park at Parkside. Kolman left the Chevrolet and walked east to Przybylski's car. He carried a shiny object in his hand. He bent over the right front fender and then straightened up and put his hands on the right front vent window. At this time defendant stated he walked from the tobacco shop toward Rauhut, who had returned with an unmarked car. While defendant was walking toward Rauhut he heard Orlowski blow the horn in the Chevrolet, and Kolman returned to the car. The Chevrolet made a U-turn and drove north on Parkside.

Defendant stated that he and Rauhut followed in the unmarked car and drew abreast of the Chevrolet within a block. With his left hand defendant showed his police star, and "I told them to halt, that we were police officers. I held it right out of the window. They were five feet away from me. Their windows were open, and our windows were open. . . . They then accelerated. . . ." In the 4200 block on Parkside, as defendant and Rauhut again drew abreast, the Chevrolet forced them over the curb and again accelerated. At this point defendant fired two warning shots in the air. The vehicle turned left on Cullom and proceeded to speed up to 60 and 70 miles per hour. Between Austin and Parkside defendant fired more shots. As both cars continued down Cullom, he saw plaintiff throwing objects out of the right front window of the car. When defendant fired the second shot, plaintiff picked up a metal object somewhere from below defendant's line of vision and had it in his hand. Afterwards, defendant found it on the street, and it was a ratchet (identified as defendant's exhibit 7). Other items picked up at the same time were lock picks, tools and other articles, all of which were inventoried by the police.

On cross-examination, defendant stated that when Kolman got out of the car, plaintiff remained in the car talking with Orlowski. He could not identify the object which Kolman had in his hand when he went to the Przybylski automobile. His vision was obstructed at the time that Kolman stood near the alarm on Przybylski's car so he had been unable to see what Kolman did with his hands. At the time that Kolman put his hands to the vent window, defendant did not know where the shiny object was. He also stated that he fired four shots at the ...

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