APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
J. FITZGERALD, Judge, presiding.
MR. CHIEF JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 26, 1970.
William Lee appeals from his conviction of murder and sentence of death imposed by the circuit court of Cook County following a May, 1967, jury trial.
On January 13, 1966, about 2:00 P.M., four men and two women were in the wholesale grocery store known as J.P. Graziano, Inc. at 901 West Randolph Street, Chicago, Illinois. Those present were the then 76-year-old owner of the business, James Graziano, his son, Fred Graziano, age 52, a friend of James Graziano, Tony Genna, and the deceased, Gaetano Pampinella, a salesman for the firm. Also present were Angeline Aliosio and Margaret Incavo, two clerical employees. There was a large office in the middle of the store and a smaller office to the west of the larger one.
The various individuals were going about their business when they were startled by a loud blast. The deceased who had been standing just inside the large office with his back to the door fell forward, shot in the back with a shotgun. It was established at trial that death was a direct result of these gunshot wounds.
Fred Graziano testified that at the time of the shooting he had been punching checks inside the large office. After the shot, he observed two colored men inside the store. One, referred to as "the tall guy", entered the office, grabbed Tony Genna, and forced him into the smaller office. The other, referred to as "the little guy", then entered the large office and, as James Graziano bent down attempting to help the deceased, put his hands in decedent's pockets and pulled out money. This robber then ordered "everyone down" and, after the witness pointed out the cash drawer, proceeded to it and scooped up more money. The total amount taken was said to be about $300.
Fred Graziano described "the tall guy" as carrying a sawed-off shotgun, wearing a three-quarter length dirty tan coat, hatless, light-complected and very tall about six feet, four inches. During the 5 or 10 minutes the tall man was in the well-lighted store his face was uncovered and this witness was able to see his face clearly.
The testimony of the two female employees, Angeline Aliosio and Margaret Incavo, was substantially the same as that of Fred Graziano, except that neither woman could identify the defendant although the former testified the assailant was colored and very tall. They testified that soon after the shot they stooped behind their desks. Tony Genna was also unable to identify the defendant. Like Mrs. Aliosio, this witness could testify only that the assailant was a Negro and very tall.
Chicago Police Officer Neil Francis testified that his assignment was to walk the Randolph Market beat from 6:00 A.M. to 2:30 P.M. About 2:00 P.M. the witness, a policeman for 13 years, was entering the store as "the tall guy" and his accomplice were leaving in a rush. The apparently vacant store caused the officer to be immediately suspicious and he began to unbutton his jacket. Fred Graziano then said there had been a robbery and shooting. The officer saw the fallen Pampinella, pulled his gun and ran out of the building to the corner of Peoria and Randolph streets, where he saw a car facing south and pulling away from the curb. From a distance of 20 feet he fired three shots at the driver. The tall man was described by Officer Francis as wearing a dirty tan topcoat and no hat.
At about 2:00 P.M. on the same day Officer Ralph Varchetto found, four blocks south of Graziano's market, a light tan Ford with three bullet holes in the back. This car had struck another car and been abandoned by its occupants. Subsequently it was discovered that this vehicle had been stolen earlier that day. A shotgun found in this car was introduced in evidence.
Ray Nault, a truck driver, testified that he saw, from a distance of 10 feet, 3 colored men leave the Ford and "gallop" down the street following the car accident. He described the men as one tall and two of medium height, wearing black leather jackets and all bareheaded.
About the same time, 3 colored men engaged a cab in the vicinity of Sangamon and Jackson Boulevard, about 4 blocks from the accident, and were driven to an address on Hamlin Avenue between Washington and Lake Streets. The cab driver said that one of the men was tall and paid the fare. Neither the truck driver nor cab driver identified defendant as one of these men. A few days later the police arrested Lawrence Anderson who implicated the defendant. The defendant was arrested on January 25.
Defendant contends he was entitled to discharge for failure of the State to provide him a speedy trial within the statutory 120-day rule. (Ill. Rev. Stat. 1965, ch. 38, par. 103-5.) He was not admitted to bail following his arrest, and indictment No. 66-752 was returned against defendant and Lawrence Anderson March 4, 1966. On April 19, 1966, defendant's motion for a severance from Anderson was granted. Indictment No. 66-1902 which added defendant Gerald Washington was returned June 15, 1966. On June 22, 1966, the State moved to dismiss No. 66-752. While defendant was eventually re-indicted a second time and not tried until May 10, 1967, the only issue, as we understand the argument, is confined to the period prior to June 22. Defendant's motion for discharge was filed August 11, 1966. In it he alleged that all delays caused by him under the dismissed indictment (No. 66-752) were removed and eliminated from consideration to the same degree as the indictment itself, and therefore no delay attributable to him intervened between January 26 and June 22 to toll the running of the statute.
Apparently this novel claim has never been directly passed upon by this court. However, as early as Brooks v. People, 88 Ill. 327, 330, this court held that where an original indictment is dismissed and defendant is re-indicted for the same offense the statutory period continues to run "as if there had been no dismissal of the first indictment", or as if the indictment under which defendant is tried had been the first indictment returned. The substance of that holding was that re-indictment for the same offense does not toll the statute. Subsequent cases have repeated this rule (People v. Hamby, 27 Ill.2d 493, 496; People v. Witt, 333 Ill. 258, 263), although the later cases have noted that motions to test the validity of an indictment and the delay occasioned thereby can be charged to the defendant. Hamby at 496.
Re-indictment following the dismissal of a prior indictment on the same offense, although in form a new crime, in substance continues to represent the State's original charge against the individual. Logic and fairness require that dismissal of the first indictment not operate to erase for ...