APPEAL from the Circuit Court of Cook County; the Hon. SAUL A.
EPTON, Judge, presiding.
MR. JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT:
Defendant was indicted on charges of murder and burglary. On a trial by jury he was found guilty of both charges and sentenced to serve concurrent terms in the State Penitentiary of 30 to 60 years for murder and five to ten years for burglary. On appeal he contends:
1) the burglary indictment was at variance with the proof adduced at trial;
2) the alleged confession used against him was obtained without his being advised of his constitutional rights; and
3) the trial court wrongfully refused to conduct a hearing on the voluntariness of his confession, thus violating defendant's constitutional right to the exclusion of evidence obtained unlawfully.
At approximately 4:30 A.M., on August 14, 1969, Harold Nixon, supervisor of Waveland Golf Course, saw the defendant in Cafe Brauer, a restaurant located near the golf course. When Nixon looked through a window and saw the defendant prying open drawers in the restaurant he realized a burglary was being attempted and called the police. Detective Donald Pike and Officer Patrick Rodgers responded to the call, arriving shortly thereafter, while defendant was still in the restaurant.
At the trial Harold Nixon testified to the above facts, stating that when he followed the two police officers into the restaurant he saw the body of the night watchman, Richard Densmore, lying on a couch directly between the police and the defendant. He stated that he heard Detective Pike ask the defendant why he did it and defendant replied that he didn't mean to do it. The defendant did not object to this question, but an objection was made in the course of the trial and will be discussed later.
The State then presented three other witnesses. After their testimony the State called Detective Pike, then the court called a five-minute recess. When court reconvened defense counsel made an oral motion to suppress defendant's confession. The State objected on the ground of untimeliness. Defense counsel advised the court that a pre-trial motion to suppress had not been made because the defendant totally denied having made any statement whatsoever. Defense counsel also told the court that he had not been informed that the alleged statement would be placed in evidence prior to the testimony of Detective Pike. As a result, when the statement was introduced earlier he was caught by surprise and, rather than disrupt the trial, he decided to wait to see if the State called Detective Pike. Defense counsel further told the court that in the list of witnesses provided by the State, only Pike was listed as witness to an oral statement made by defendant, and that he was surprised when the State's witness, Nixon, also testified to an oral confession. The State then moved to amend its list of witnesses to include Nixon and Officers Samuel Greiner and Rodgers as witnessees to the alleged oral confession. The trial court permitted the State to so amend its list of witnesses but denied defendant a hearing as to the lawfulness of the alleged confession.
Detective Pike then took the witness stand and testified that when he arrived at the Waveland Golf Course in response to the radio message he was met by Nixon who told him what was happening. He further testified that he and Officer Rodgers, followed by Nixon, went into the restaurant and saw the defendant at the rear of the building with two bags in his hands. Pike told the defendant to stop, put up his hands and come forward. Pike testified that the night watchman was lying on a cot directly between him and the defendant; that there was blood around his head; that he asked the defendant, "What happened to him?" and the defendant replied that the night watchman woke up and he had to hit him. Pike stated that he then placed the defendant in custody and examined the premises and found that the defendant was the only person in the building. His investigation also revealed a long pipe directly at the back of the deceased's head, which the testimony reveals was available to defendant as the murder weapon. Pike testified that he was present during subsequent questioning of the defendant.
Officer Patrick Rodgers testified that on the morning in question he received a radio call that a burglary was in progress at the Waveland Golf Course restaurant. He arrived there just behind Detective Pike, and as they entered the building they saw the deceased lying on a cot and saw the defendant in the rear of the building; that the defendant came forward when Pike ordered him to do so, and as he passed the body of the deceased night watchman Pike asked "What happened to him?" and the defendant replied, "He started to wake up and I hit him." The officer stated that after being questioned the defendant was ordered to lie down on the floor, and after being searched the defendant was handcuffed to the railing in front of a counter.
Detective Greiner testified that he arrived at the scene of the crime between 5:00 and 5:30 A.M., and talked with Pike and Rodgers. When he went into the restaurant he saw the deceased lying on a cot with blood all over the upper part of his body, and his forehead was crushed. He identified himself to the defendant and advised him of his constitutional rights, which defendant said he understood. Greiner then asked the defendant if he killed the night watchman, and he said, "He woke up and I hit him. I didn't mean to do it." Greiner asked the defendant if he used the pipe which was lying near the deceased, and he said he did. Greiner testified further that defendant was taken to Area 6 Police Station, Homicide, after which Greiner requested the State's Attorney's office to send an assistant to the station to take a written statement from defendant. The defendant, however, refused to make such a written statement.
Defendant testified that he worked at a hot-dog stand; that on the morning of August 14, 1969, when he finished work at 2:45, he was not tired, so he rode his bicycle "around"; that while riding he met one Johnny whom he had known "from the past." He further testified that Johnny suggested they break into the restaurant at the Waveland Golf Course because there was money in the building. Defendant testified that he refused, but through persuasive argument Johnny convinced him to help burglarize the restaurant. He said that Johnny told him to go into the basement; that when he heard voices he came back upstairs and saw Detective Pike who ordered him to put up his hands and come forward. He further testified that the police officers threw him to the ground, searched him, then flipped him over on his back; that Detective Pike put his foot on his stomach and his gun on his chest and said, "Talk, you dirty m ____ f, say you did it." Defendant testified that he thought Pike was referring to breaking into the restaurant, and he said, "I did it." He testified that he was then handcuffed against a counter and could see into the room only by looking over his shoulder. He testified that he never saw the body of the deceased; that he was advised of his rights after he was taken to the Damen Avenue Police Station; and that after becoming aware of those rights he refused to make a written statement and his alleged oral confession was never reduced to writing. We proceed to a consideration of defendant's first contention, that the indictment was at variance with the proof adduced a trial.
• 1 The burglary indictment against defendant alleged that he intended to commit the crime of theft at the "Restaurant of Paul Hecker and Agness N. Whiteman, co-partners, doing business as Cafe Brauer Corporation, a corporation." At trial, co-partner Hecker testified that his co-owner's name was actually Agnes N. Whitehead and that the business was that of a partnership rather than a corporation. Defendant contends that this variance between the indictment and the proof at trial was fatal to the State's case. In a burglary charge it is not necessary to prove ownership of or precise legal title in the burglarized premises. Rather, it is ...