APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR
L. DUNNE, Judge, presiding.
MR. JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 20, 1976.
The plaintiff, Hutchie T. Moore, appeals from a judgment of the Circuit Court of Cook County affirming the decision of the Police Board of the City of Chicago to discharge him from the Chicago Police Department.
The issues on appeal are whether Rules 2 and 8 of the Chicago Police Department are unconstitutionally vague, indefinite and uncertain, and whether the Chicago Police Board's findings with respect to rules 2, 8 and 36 are contrary to the manifest weight of the evidence.
On May 18, 1972, the plaintiff, an off-duty police officer, was doing repair work in the vestibule of an apartment building which he owned at 5446 West Fulton Street in the city of Chicago. He had received information that one of his tenants, Odell Phillips was responsible for three recent burglaries in the building, and when Phillips walked into the building at about 12:40 p.m., Moore attempted to arrest him. He testified that when Phillips came in, he told him two witnesses said he was responsible for the burglaries. If it was okay, they would go to the district station where he could be confronted by the witnesses, and if he was innocent, the matter could be cleared up. Phillips said he was not responsible for the burglaries and he would not go to the station. Moore then told him he was under arrest and told Jeff Dampier, who was in the hallway, to call the police. Phillips told Moore he had no right to hold him in the hallway because he was not on duty, and attempted to leave the building. When Moore blocked the front door, Phillips attempted to go up the stairs. Moore grabbed his arm, Phillips jerked away, and some blows were struck. Moore took his gun out of his belt, and after a brief struggle in which Phillips reached for the gun, Moore struck Phillips on the side of the head with the gun. At this time the police arrived. Moore showed Officer Spolar his star and identification number, and then accompanied Phillips to the hospital where he received 29 stitches behind his left ear. Moore stated he could not have subdued Phillips without hitting him with his gun.
Phillips testified that when he entered the vestibule, Moore told him he knew he was breaking into the apartments. Moore told Jeff Dampier to call the police and grabbed his arm and started pushing and shoving him. Moore pushed him up the steps, pulled out his gun and hit him on the side of the head, after which he stood there pointing the gun at him. Moore did not inform him he was under arrest.
Officer Spolar testified that upon questioning him, Moore stated he was arresting Phillips for investigation of burglary and that Phillips had tried to get away, and he hit him in the head with his gun. Phillips told Spolar that he had walked away from Moore just before being hit.
Officer Ritenouer testified he investigated the incident and talked to Phillips as he was undergoing treatment in the hospital. Phillips told him Moore was going to place him under arrest, and he did not feel that Moore was justified in doing so. When Moore put his hands on him, he jerked away and was struck on the head. Phillips said he was aware Moore was a police officer.
The three burglaries in the building occurred on April 18, 1972, at Leo Gordon's apartment, on April 26, 1972, at Ronald Wigfall's apartment, and on May 16, 1972, at John Cox's apartment. There had also been damage to the building during the same period of time. Moore testified that Leo Gordon told him on the morning of June 18, he saw Phillips leave the building through the rear with a black and white television set on the previous day. Gordon did not say it was his set.
Moore also testified he had a conversation with Beulah Boyd right before the incident, and she told him she saw Phillips and two others enter a second-floor window of the apartment building from the back porch. After the incident Moore asked her to return to the station with him, but she said she did not want to get involved and refused to identify anyone.
At the hearing Beulah Boyd testified she could observe Moore's apartment building from her house, which was about 100 feet away. Moore had asked her if she had seen anybody going in an apartment from the porch, and she had answered, "No." She had seen someone coming from the building with something wrapped up which may have been a TV set, but it was not Odell Phillips.
Mrs. Cox testified she had been asked by police officers to go into Phillips' apartment to see whether any of the items taken from her apartment were there, and Phillips had invited her to look all through the apartment. She saw two television sets in the apartment which Phillips identified as belonging to his mother and sister, but neither was the one she lost in the burglary. Phillips testified he had three TV sets in his 3 1/2-room apartment and all three belonged to him.
Officer Mette testified an investigation determined Leo Gordon could place Phillips at the rear of the apartment building with a ...