APPEAL from the Circuit Court of Cook County; the Hon. HERBERT
C. PASCHEN, Judge, presiding.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 28, 1969.
Defendants Charles Ross and Josephine Pawlak were jointly tried and convicted of arson in a jury trial in the circuit court of Cook County. They appeal directly to this court, charging that they were denied due process in that the indictment was insufficient and failed to inform them of the nature and cause of the accusation against them. Additionally, they contend that the evidence was insufficient to establish guilt beyond a reasonable doubt, that they were denied an opportunity to impeach the State's chief witness on the basis of statements he made to the police and that "secret ex parte proceedings were held between the prosecutor and the court," thereby denying them the constitutional right to be present at all stages of the proceedings.
Mrs. Pawlak further claims that her motion for discharge should have been allowed because she was not tried within "four terms of court" and that the attempted impeachment of her on rebuttal was improper. Ross asserts error was also committed when his motion for severance in the second trial was denied.
The indictment charged these defendants, together with Bernard Mayes and George Mauricaux, with having, on May 3, 1964, committed the offense of arson "in that they, by means of fire knowingly damaged the building of General Federal Savings & Loan Association, a corporation, without the consent of said General Federal Savings & Loan Association in violation of Chap. 38, section 20-1, Ill. Rev. Stat., 1963." That section provides, in relevant part, "A person commits arson when: (a) By means of fire * * * he knowingly: (1) Damages any building of another without his consent." The section further provides that: "A building or property `of another' means a building or property in which a person other than the offender has an interest which the offender has no authority to defeat or impair, even though the offender may also have an interest in the building or property." Ill. Rev. Stat. 1963, chap. 38, par. 20-1.
While conceding that the indictment charges the offense in the language of the statute, defendants contend that both the statute and the indictment are so vague and indefinite that they fail to apprise the defendants of the nature and cause of the accusation. Specifically, they charge that the definition in the statute of "a building or property of another" is so ambiguous and so susceptible of a variety of meanings as to lack the constitutional precision and exactness required in a criminal statute. "The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed." (United States v. Harriss, 347 U.S. 612, 617, 98 L.Ed. 989, 996, 74 S.Ct. 808; see also People v. Reed, 33 Ill.2d 535, 538.) We cannot agree with the defendants that the statute is so difficult of comprehension. Certainly, any person of ordinary intelligence has fair notice what conduct the statute proscribes. The statement that one knowingly causing damage by fire to a building whereby the interest therein of any other person, without his consent, is defeated or impaired constitutes a crime, is not ambiguous, vague or indefinite. The same may be said of the words constituting the statutory definition of "a building or property of another."
We further find no basis for defendants' contention that the indictment failed to inform them of the nature and cause of the accusation against them. Every indictment must be sufficiently specific to inform the offender of the nature and character of the accusation against him and to serve as a bar to a subsequent prosecution for the same offense. (People v. Patrick, 38 Ill.2d 255; People v. Griffin, 36 Ill.2d 430; People v. Johnson, 34 Ill.2d 202; People v. Reed, 33 Ill.2d 535.) The indictment in this case charged the offense in terms of the statute which is deemed sufficient to meet constitutional requirements "when the words of the statute so far particularize the offense that by their use alone an accused is apprised with reasonable certainty of the precise offense with which he or she is charged." (People v. Patrick, 38 Ill.2d at 258.) The indictment here, being framed in the statutory language and identifying the property damaged by fire as that of the savings and loan association, was sufficient to advise the defendants with reasonable certainty of the precise offense charged and to enable them to prepare their defenses. Furthermore, they requested and were granted a bill of particulars specifically setting forth the date and time the offense was committed and the persons known to be present when it was committed. Further particularization was not necessary to bar any subsequent prosecution for the same charge.
Defendants next contend that "even if the statute be held constitutional and the indictment under it proper", there was no proof as charged in the indictment in that there was considerable variance between the State's proof and the allegation that the property was the "building of the General Federal Savings and Loan Association" on May 3, 1964. For the determination of this and the other contentions on appeal, we turn to the evidence adduced in the trial of this cause.
In January 1960, defendant Pawlak and her husband (since deceased) borrowed $75,000 from the General Federal Savings and Loan Association and to secure payment thereof executed a mortgage on the one-story restaurant and cocktail lounge, known as the Cottage Restaurant, located on the northeast corner of Mannheim and Butterfield roads in Bellwood, Cook County, Illinois. The premises were insured in the amount of $120,000. The business proved a failure and closed on January 5, 1964. At that time there was due and owing the sum of $76,922.86, representing principal and interest on the loan. There was also an outstanding chattel mortgage on the business fixtures with a balance of $11,000 or $12,000 due. The original cost of the liquor license amounting to $7000 was unpaid and, in addition, defendant Pawlak owed to the United States government the sum of $1200 in deducted payroll payments. The association instituted foreclosure proceedings in February 1964 and on March 11, 1964, the circuit court of Cook County entered an order by which the association was "placed in possession of the real estate described in the complaint filed in this cause with such powers as are granted by statute to a mortgagee in possession."
On May 3, 1964, at 11:00 P.M., firemen of Bellwood responded to a fire at the premises. On inspection, after the blaze was extinguished, two "Martin" fuel oil cans were discovered in the boiler room and in the kitchen, respectively. Later, three five-gallon milk cans were found outside the rear door on the north side of the building. One of these cans was filled with flammable liquid and the other two were empty except for a thin film of sour milk. The premises contained a gas furnace but the gas had previously been turned off and the meter padlocked. Evidence of a flammable fluid was found in partially consumed carpeting in the west end dining room area and a piece of the rug, removed and tested by a chemist, disclosed that it contained a flammable substance similar to naphtha. There was testimony that the walls bulged out, causing a collapse of the east, west and south walls, and the grilles of a return air duct, normally imbedded in the floor, were blown up and out. An expert concluded that vapors from a flammable liquid had exploded within the building and in his opinion the fire was definitely of incendiary nature.
Although the cause of the fire was an immediate subject of investigation, it was not until December, 1964, that George E. Mauricaux was taken into custody and confessed culpability in the arson, implicating Bernard Mayes and these defendants. All four were indicted but these defendants were granted a severance and tried jointly.
Mauricaux, who was the State's chief witness, testified that he had known defendant Mrs. Pawlak for about 17 years and worked for her intermittently and at various times was employed at the restaurant. He stated that when the business closed in January, 1964, Mrs. Pawlak obtained employment at a restaurant in Chicago and he drove her to and from work practically every day. In late February or early March, when he asked her what was going to happen to the restaurant, she said, "The best thing that could happen to the Cottage Restaurant is to burn it down to the ground." She told him that if he would do her this favor, she would never forget him or could never do anything to hurt him, that there would be $12,000 for the person who did it and that he (Mauricaux) would get a new Cadillac. A day or so later, he told her he had talked to somebody who wanted no part in it but who suggested that he find someone else. He saw her again on Easter Sunday, March 29, when she said, "This will be a good time for the Cottage to burn up, we have a snow blizzard." He told her he hadn't "got a hold of anybody." Mauricaux knew defendant Ross who had worked at Martin's gas station adjacent to the Cottage Restaurant for four or five years. Several days after Easter, Mauricaux visited Ross at his garage on Roscoe Avenue in Chicago and told him that Mrs. Pawlak and he would like the restaurant burned and that there was $1000 in it for the person who did it. Ross told him it "sounded good". After informing Mrs. Pawlak of Ross's response, he again visited Ross and left with him a card on which he wrote Mrs. Pawlak's telephone number and told him to call and verify the offer. This card was found by an agent of the Illinois Crime Commission at Ross's garage in December 1964. In mid-April, Mrs. Pawlak expressed concern regarding the delay. Mauricaux had several conversations with Ross, and toward the end of April, Ross introduced him to Mayes. Ross told Mayes that Mauricaux was "his man" and Mauricaux told him "they" wanted the restaurant burned. There was some mention of money. Ross said Mauricaux could come up with $300 and he (Ross) would stand good for the $700. Mayes said it "sounded good". Mauricaux then obtained a loan with Mrs. Pawlak's approval and he gave Mayes the sum of $280. Ross said the job would be done and that "they were over and there was a vent in the back door of the Cottage Restaurant and there was six or eight sheet metal screws to be taken out and that was it." Mauricaux then said he went over and "somebody had taken them out and there was one or two left in there." Mauricaux took three milk cans, rinsed them out, took them to a hardware store in Bellwood, had them filled with naphtha, and placed them in the breezeway at the restaurant. As he walked by the premises the next day, he noticed the cans were leaking. On the day before the fire he spoke with Ross at the garage concerning the leaking cans. Ross gave him two 5-gallon cans and $2 and told him to have them filled up. He had them filled with gasoline at Martin's and dropped them off at the breezeway. He saw Mrs. Pawlak on Sunday, May 3, and told her that the restaurant was "going up" that day, "and she said she didn't want to know nothing, to have no tongue, and she could never forget me or do anything to hurt me and I told her likewise." The day after the fire Mauricaux saw Ross and Mayes at the garage. They remarked that "we must be professional arsonists, we had to get third degree burns." Mayes told him he threw a match, it went out but that he threw a second one and it went off. He was lucky, Mayes said, that he didn't get killed. A day or so later Mauricaux told Ross he had a subpoena to testify before the State fire marshal. Ross told him not to worry, that there was nothing that could be proved. Although Mauricaux testified under oath at the fire marshal's hearing, he said he did not tell the truth. He saw Ross that night and told him that while at the fire marshal's hearing he overheard that they had his fingerprints on a can and Ross told him that they were bluffing, that fingerprints couldn't last in the open air over night. Ross then asked for the money and he told him that when he got paid, Ross would get paid. About three weeks later (in June) he, accompanied by his girl friend, Cathy Kunkel, saw Ross and Mayes at Ross's home. Ross asked "How did Ma (Mrs. Pawlak) like our job" and also asked for the money. Again, Mauricaux said that as soon as he got the money they would get "theirs". Next day he asked Mrs. Pawlak for the money and she answered that when she got it, they would get paid.
Portions of Mauricaux's testimony were corroborated by the testimony of his girl friend and that of the hardware store owner. The girl friend, Cathy Kunkel, who in August, 1964, had entered a religious order and was a novice in a convent when she testified, recalled being with Mauricaux on a Sunday afternoon about three weeks after the fire when they drove up to Ross's house. Ross and Mayes got into the back seat of the car and she heard Ross ask Mauricaux for the money for the job. When Mauricaux said he didn't have it, Ross replied: "We want the money, we are waiting for it." She heard Ross say that they had set off such a good fire that the police thought it was a professional job. Mayes agreed. One of them, she said, mentioned the fact that the fire went up so quickly that he had to leave his glove there. The fire chief had testified to finding a pair of canvas gloves in the boiler room. She accompanied Mauricaux when he picked up Mrs. Pawlak at the restaurant on several occasions. While in the car, on one of those occasions about three weeks after the fire, she heard Mauricaux ask Mrs. Pawlak if she had the money and Mrs. Pawlak replied that she could not get it. Two weeks later, Mauricaux again asked for the money because he said the boys were asking for it. Mrs. Pawlak said the insurance had not gone through and so she didn't have it. She overheard a similar conversation between Mauricaux and Mrs. Pawlak some time in June. The hardware store owner testified that he knew Mauricaux some 17 years, that he did not deal in naphtha but that some time in the spring of 1964 he had sold him (Mauricaux) 15 gallons of benzene in three 5-gallon milk cans.
Direct and cross-examination developed that Mauricaux, 32 years of age, had elementary education up to the seventh grade and could read and write a "little". He had intermittent employment and after the death of his mother lived with a mentally disturbed sister. When testifying under oath before the fire marshal he did not tell the whole truth. He said that when he appeared before the grand jury in October, 1964, he did not tell the truth "about the fire". He did, he said, tell the truth when he again appeared before the grand jury in January 1965. In 1961, after being jailed on a minor offense, it was suspected that he attempted suicide and as a result spent about 44 days in some mental institutions. In 1963, he served in the Army for about six months and was discharged because he "could not adjust to military service." In the Fall of 1964 Mauricaux contended he was a partner in the restaurant business Mrs. Pawlak established with $2300 she obtained from his mother. The dispute precipitated his arrest when he entered the restaurant in possession of a pistol. In January, 1965, he caused her arrest on a warrant charging her with theft of the $2300. Both matters were dismissed for want of prosecution. After confessing his ...