APPEAL from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County;
the Hon. WALTER P. DAHL, Judge, presiding.
MR. CHIEF JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
Defendants Eugene Marino, Frank Rago, John Monteleone, and Angelo Pettit were convicted of theft of property exceeding the value of $150 after a jury trial in the circuit court of Cook County and each was sentenced to a term of not less than one nor more than five years in the penitentiary. A co-defendant, Robert Vaughn, was acquitted. On appeal to the Appellate Court for the First District, the judgments of conviction as to defendants Rago, Monteleone, and Pettit were affirmed (95 Ill. App.2d 369), but the cause was remanded to the trial court with instructions to conduct a proper hearing on aggravation and mitigation. The appellate court, in a separate appeal, also affirmed the conviction of defendant Marino. (95 Ill. App.2d 391.) We have allowed defendants Rago, Monteleone, and Pettit leave to appeal from the judgment of the appellate court. Defendant Marino is not a party to this appeal.
Prior to the commencement of the jury trial, the trial court conducted a hearing on defendants' motion to suppress evidence. During the hearing, Sgt. Henry Prokop of the Northlake police department testified that at about 10:00 A.M. on April 13, 1964, he and Sgt. Ralph McLean were in the office of Paul Heggaton, the Northlake chief of police. Chief Heggaton received a phone call, after which he directed Prokop and McLean to travel to 208 Major Drive, the home of defendant Marino, as there was "something suspicious" going on there. On direct examination Sgt. Prokop testified that he had no knowledge that a crime had been committed or what type of crime they were investigating, as he and Sgt. McLean drove their squad car onto the Marino premises, or indeed when the arrests were made. However, on cross-examination by the assistant State's Attorney, it was brought out that Prokop had, prior to the incident in question, heard during the course of his police work from his fellow police officers that stolen property was being stored somewhere in the north end of Northlake, and that is where the Marino premises are located. In any event, Prokop and McLean took a squad car, unmarked except for police insignia on the sides thereof and two red flashers built into the headlights, and drove to 208 Major Drive. As they drove onto the premises, they observed a large truck in the driveway backed up to the front of a garage. After the squad car came to a halt in the driveway, Sgt. Prokop noticed a person peer around the rear of the truck. He drew his revolver, as did Sgt. McLean. Sgt. McLean fired two shots, as persons were running away from the scene. Prokop testified that he couldn't remember whether the fleeing subjects commenced their flight before or after the shots were fired by McLean. The officers gave chase, and Prokop apprehended and arrested defendant Pettit about a block from the Marino property. Pettit fitted the description of the person Sgt. Prokop had previously observed climbing over a fence at the rear of Marino's property. The police officers had no search warrant in connection with the premises in question.
Helen Nowak, who lives at 200 E. Major Drive in Northlake, which address is on the northeast corner of Major Drive and Roy Street, two doors east of Marino and on the same side of the street, testified at the hearing on the motion to suppress that at about 9:30 A.M. on April 13, 1964, she looked out of her window and saw a truck in the driveway of the Marino premises. Mrs. Nowak noticed four people in Marino's yard, about 65 feet away from her. She recognized Marino, who had keys in his hands. Marino opened the door to the garage and the men started to hurriedly load the truck with "cartons of something". Mrs. Nowak, after having called Chief Heggaton concerning her observations, went to her front window and observed the squad car come into the Marino driveway. As the squad car pulled up onto the driveway, the persons on the Marino premises started to run. Two of these persons jumped off the truck and ran to the rear of the premises, one to the right of the garage and the other to the left. The one who ran to the left of the garage jumped over the fence. Mrs. Nowak could not see where the other person who jumped off the truck went. Marino ran across his yard to the east side of his house. Mrs. Nowak saw the police run, heard them shout "halt" and observed them firing their guns into the air.
Sgt. McLean of the Northlake police department stated at the hearing on the motion to suppress that on the day in question he received an order from Chief Heggaton to go to 208 Major Drive with Prokop to investigate a "suspicious truck" in the driveway. At that time he was wearing a white shirt with a gold star thereon and light blue pants with dark blue stripes down the sides. He drove the squad car to the premises, observed the truck, and turned into the driveway and stopped. At that time he saw nothing suspicious. As he emerged from the squad car, he saw some subjects peer around the rear of the truck and jump therefrom. As he saw the subjects run, he drew his weapon and shot twice into the air. He observed "four or five" figures running from the truck. He could not observe their facial features. He gave chase but lost sight of the fleeing figures temporarily. When he arrived behind the garage he observed defendant Monteleone standing there with his hands in the air, whereupon the latter was taken into custody. Sgt. McLean asked Monteleone what he had been doing by the truck and the latter indicated that he hadn't been there. Monteleone also stated, according to Sgt. McLean, that he was standing there with his hands in the air because a shot had "whizzed" by him. Monteleone fit the description of the person Sgt. McLean saw running to the rear of Marino's lot along the west side of the garage insofar as his dark clothes and his size were concerned. When Sgt. McLean returned to the garage and truck after taking Monteleone into custody, he observed cartons in the garage and in the truck, which items were subsequently seized.
Defendant Marino testified at the hearing on the motion to suppress that he had rented his garage to a Mr. Anderson in 1963 and that it was so rented on April 13, 1964. He nonetheless had not relinquished complete control over the garage in that he retained a key thereto and kept certain items therein. On April 12, 1964, he had received a telephone call inquiring about his house, which he said was for sale. This same person called again on April 13, 1964, at about 8:30 A.M. After the latter call, Marino went to sleep and the next thing he recalled was Monteleone and Pettit ringing his front door bell. The two men went into Marino's backyard, whereupon Marino went into his bedroom for a pair of shoes and stockings. He heard shooting and ran to his back door where he observed Sgt. McLean and Robert Vaughn. When he walked out of his house he was arrested. He did not give the officers permission to come onto his property, nor was he aware of the truck's presence on his premises when he came out of his house. Prior to that day, Marino had never seen defendants Monteleone or Pettit, nor had he ever seen defendant Rago prior to their meeting at the police station after having been taken into custody.
Paul Heggaton testified at the hearing on the motion to suppress that on April 13, 1964, he was the acting chief of the Northlake police department. Prior to that time, he had received information from various sources that stolen merchandise was being kept on the north side of Northlake. At about 10:00 A.M. Chief Heggaton received a phone call from Mrs. Nowak, whose voice he recognized, having known her prior to that time for 12 years. Mrs. Nowak informed him that there were three or four men loading goods from a garage into a truck in a suspicious manner at 208 Major Drive. After his conversation with Mrs. Nowak, Chief Heggaton dispatched Sgts. Prokop and McLean to that address, informing Sgt. Prokop that "this may be what we are looking for". The chief testified that he had informed Prokop on numerous occasions prior to the incident in question that stolen merchandise was being kept in the north side of the city, but Prokop denied having been so informed. Chief Heggaton left for the Marino premises about 10 minutes after Sgts. Prokop and McLean had gone. When he got there, he observed a large truck and a squad car. He observed cartons in the truck.
At the trial of the cause, Robert G. Brown, the warehouse manager of the Louis Zahn Drug Company, testified that the company warehouse in Melrose Park was burglarized at some time between Saturday, October 5, 1963, and Monday, October 7, 1963. He identified the cartons discovered at Marino's property on April 13, 1964, as being part of the pharmaceutical merchandise taken from the warehouse. He further testified that in his opinion the fair cash market value of all the goods found in Marino's garage was about $50,000, and that the merchandise contained in 25 cartons found in Marino's garage which Brown had marked before they were taken from the warehouse had a value of $600.
Mrs. Nowak testified again during the trial. Her testimony was substantially the same as that given at the hearing on the motion to suppress, recounted earlier herein. On cross-examination, she stated that she could positively identify only Marino as being present at his garage, and on redirect she stated that she could not say definitely whether the defendants Monteleone, Pettit, and Rago were or were not the other men present at Marino's property. She identified defendant Rago at the trial as the man who was apprehended by Sgt. Prokop, although on a prior occasion she identified defendant Monteleone as the one arrested by Prokop.
Loreta Armentano testified at the trial that she resided at 241 E. Dewey in Northlake. At about 10:00 A.M. on April 13, 1964, she was in her kitchen taking insulin for a diabetic condition. Her kitchen faces a school yard in back of the Roy School, and is separated from the school premises by an 8-or-10-foot fence. The kitchen is about 190-200 feet from the fence. She happened to glance out her window and observed what she thought was a "teenager" running in the school yard. He scaled the fence, tearing his pants, and came onto the Armentano property, whereupon he hesitated and looked about. Mrs. Armentano called the police as to her observations. She could not identify the person she saw on her property. She stated that she has a tool shed on her premises, which shed is always kept open.
Police officer Joseph Hermann of the village of Franklin Park testified that he was patrolling the area around Mannheim and Grand in Franklin Park when at about 10:00 A.M. on April 13, 1964, he received a radio message broadcast by the Northlake police. About 15 minutes later he received another message, whereupon he proceeded in the direction of the Roy School. A man and a woman flagged him down and he followed them to the Armentano premises, where he had a conversation with a woman. He and his co-officer went to the tool shed, opened its door, and observed a man sitting therein identified as defendant Rago. His pants were pulled down to his knees and were ripped. In response to a question of one of the officers, defendant Rago stated that he was resting in the shed.
Isabel Marino, defendant Marino's wife, testified on behalf of the defense that the garage behind the Marino home had been rented to a Mr. Anderson at the time of the incident in question. She stated that Mr. Anderson used the garage for storage purposes and not for a car. Rent receipts and income tax returns substantiating the rental income were introduced as evidence. Mrs. Marino also used the garage for storage, and she had upon occasion observed boxes not belonging to her stored in the garage. She stated that her husband parked his car on the street and denied that he ever removed articles from the garage and placed them in his car.
In rebuttal, the State recalled Mrs. Nowak, who testified that she had observed Marino on prior occasions go into his garage. Another man would drive his car up to the garage and then drive ...