{ "id": 5395691, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. THOMAS A. CANALE, Appellant", "name_abbreviation": "People v. Canale", "decision_date": "1972-05-22", "docket_number": "No. 42753", "first_page": "107", "last_page": "121", "citations": [ { "type": "official", "cite": "52 Ill. 2d 107" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "79 Ill.App.2d 117", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2563824, 2564913 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/79/0117-02", "/ill-app-2d/79/0117-01" ] }, { "cite": "66 Ill.App.2d 458", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5291793 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/66/0458-01" ] }, { "cite": "1 Ill.2d 60", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5314825 ], "opinion_index": 0, "case_paths": [ "/ill-2d/1/0060-01" ] }, { "cite": "268 A.2d 534", "category": "reporters:state_regional", "reporter": "A.2d", "opinion_index": 0 }, { "cite": "111 N.J. Super. 435", "category": "reporters:state", "reporter": "N.J. Super.", "case_ids": [ 303617 ], "opinion_index": 0, "case_paths": [ "/nj-super/111/0435-01" ] }, { "cite": "266 A.2d 361", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1970, "opinion_index": 0 }, { "cite": "9 Md.App. 542", "category": "reporters:state", "reporter": "Md. App.", "case_ids": [ 2339133 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/md-app/9/0542-01" ] }, { "cite": "253 A.2d 201", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 8108023 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/a2d/253/0201-01" ] }, { "cite": "281 Minn. 119", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 298887 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/minn/281/0119-01" ] }, { "cite": "198 Kan. 467", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 35492 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/kan/198/0467-01" ] }, { "cite": "229 N.E.2d 206", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "282 N.Y.S. 519", "category": "reporters:state", "reporter": "N.Y.S.", "opinion_index": 0 }, { "cite": "20 N. Y.2d 266", "category": "reporters:state", "reporter": "N.Y.2d", "case_ids": [ 2280706 ], "opinion_index": 0, "case_paths": [ "/ny-2d/20/0266-01" ] }, { "cite": "89 S.Ct. 2028", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "23 L.Ed.2d 467", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "395 U.S. 948", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1772199, 1771625, 1772043, 1771597, 1772051, 1771764, 1772085, 1771607, 1771928, 1771865 ], "opinion_index": 0, "case_paths": [ "/us/395/0948-05", "/us/395/0948-04", "/us/395/0948-01", "/us/395/0948-07", "/us/395/0948-02", "/us/395/0948-09", "/us/395/0948-03", "/us/395/0948-10", "/us/395/0948-06", "/us/395/0948-08" ] }, { "cite": "245 N.E.2d 688", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "297 N.Y.S.2d 913", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1969, "opinion_index": 0 }, { "cite": "23 N.Y.2d 527", "category": "reporters:state", "reporter": "N.Y.2d", "case_ids": [ 2287422 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/ny-2d/23/0527-01" ] }, { "cite": "204 N.E.2d 842", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "256 N. Y.S.2d 793", "category": "reporters:state", "reporter": "N.Y.S.2d", "opinion_index": 0 }, { "cite": "15 N.Y.2d 159", "category": "reporters:state", "reporter": "N.Y.2d", "case_ids": [ 2271470 ], "opinion_index": 0, "case_paths": [ "/ny-2d/15/0159-01" ] }, { "cite": "164 U.S. 492", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3591459 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/164/0492-01" ] }, { "cite": "95 Ill.App.2d 430", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2538198 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/95/0430-01" ] }, { "cite": "242 Ill. 101", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5653511 ], "opinion_index": 0, "case_paths": [ "/ill/242/0101-01" ] }, { "cite": "332 Ill. 120", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5213129 ], "opinion_index": 0, "case_paths": [ "/ill/332/0120-01" ] }, { "cite": "25 Ill.2d 407", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5353373 ], "opinion_index": 0, "case_paths": [ "/ill-2d/25/0407-01" ] }, { "cite": "41 Ill.2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2852087 ], "opinion_index": 0, "case_paths": [ "/ill-2d/41/0001-01" ] }, { "cite": "158 Ill. 111", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3136480 ], "opinion_index": 0, "case_paths": [ "/ill/158/0111-01" ] }, { "cite": "41 Ill.2d 571", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2852493 ], "opinion_index": 0, "case_paths": [ "/ill-2d/41/0571-01" ] }, { "cite": "388 U.S. 263", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168184 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/388/0263-01" ] }, { "cite": "388 U.S. 218", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168076 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/388/0218-01" ] }, { "cite": "394 U.S. 721", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6179734 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/394/0721-01" ] }, { "cite": "47 Ill.2d 120", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2903067 ], "weight": 2, "pin_cites": [ { "page": "127" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/47/0120-01" ] } ], "analysis": { "cardinality": 1012, "char_count": 24028, "ocr_confidence": 0.873, "pagerank": { "raw": 7.09837684566496e-07, "percentile": 0.9666777870061151 }, "sha256": "e5aaff4da08257537c47173bdbc7a2a92111404da7ca0984cc518d6dfa302a9d", "simhash": "1:8fa9979a6624d8db", "word_count": 4146 }, "last_updated": "2023-07-14T17:03:26.982632+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. THOMAS A. CANALE, Appellant." ], "opinions": [ { "text": "MR. JUSTICE GOLDENHERSH\ndelivered the opinion of the court:\nA jury in the circuit court of Cook County found the defendant, Thomas A. Canale, guilty of aggravated kidnapping, deviate sexual assault and rape. The circuit court entered judgment on the verdicts and sentenced him to the penitentiary for a term of not less than 4 nor more than 16 years on the aggravated kidnapping and rape charges, the sentences to run concurrently.\nThe prosecutrix, age 52, testified that she left her home at 6:20 P.M. on December 22, 1967, and entered her automobile parked on the street in front of her residence intending to drive to her sister-in-law\u2019s home. A man, wearing a black leather jacket, entered her automobile on the passenger side, pointed a gun at her, and directed her to drive around various streets until she reached a vacant area near a factory where he told her to park. He removed his trousers, underpants and jacket and forced her to perform oral, anal and vaginal copulation with him. After he had put on his trousers and underpants, he noticed some papers on the seat of the car, asked if they were hers or his, she answered they might be hers, and he threw the papers out of the window. All of the acts to which the prosecutrix testified occurred in the front seat of the car. He told her he would drive the car, would \u201clet her off\u201d and would then leave the car \u201cnear the school or on Crawford and Bryn Mawr.\u201d He drove to Tripp and Bryn Mawr, let her out of the car, and drove away. It was then shortly after 7:00 P.M. She ran a few blocks to a food mart at Crawford and Bryn Mawr in Chicago where she telephoned her husband and sister-in-law. When her husband and two police officers arrived, they drove to the vacant area to look for the papers that had been thrown out of the car. They found two payroll check stubs and a payroll check dated that day and payable to defendant. The prosecutrix was taken to a hospital, examined, and was taken to her home. At approximately 9:00 P.M. a police officer came to her home and drove her to the police station. She testified that defendant was the man who had raped her and that she had identified him at the police station. Her automobile was found at Kimball and Catalpa. The keys were in the ignition, her purse was in the car and nothing was missing.\nDefendant, age 20, testified that he lived with his parents, three younger brothers and a sister. He was employed at a clothing factory and had worked all day on December 22, 1967. That morning he was given his regular weekly pay check and a vacation pay check. He cashed one of the checks in the building where he worked. He put the two check stubs and the remaining check into his left rear pocket. He left work at the usual time, approximately 4:50 P.M., went directly home, arriving there at about 5:40 P.M., and remained there until the police came at 8:30 or 8:45 P.M. At about 6:15 P.M. shortly after the family had finished eating dinner he had noticed that his check and check stubs were missing. Defendant\u2019s mother testified that her son had arrived home at approximately 5:40 P.M. and was there until the police arrived.\nAs grounds for reversal defendant contends that the testimony of the complaining witness in identifying him as her assailant was the product of his illegal arrest and detention and that his constitutional rights to counsel and due process of law were violated. He argues first that the trial court refused to conduct an \u201cidentification hearing\u201d and in failing to do so committed reversible error.\nThe record shows that after the jury had been selected, impaneled and sworn, and before opening statements were made, defense counsel stated: \u201c*** and before the opening statements, after the jury has been sworn, I would respectfully ask the Court on a motion to suppress to inquire into the fairness of the identification of this particular defendant the facts would reveal that there wasn\u2019t any particular line-up, Judge, and this is in connection with the philosophy enunciated in Stovall, Wade and Gilbert.\u201d The court told counsel he \u201cought to file the proper motion.\u201d In the ensuing colloquy it appears to have been agreed that the consideration of the question by the court should be held in abeyance \u201cuntil it comes up during the course of the trial.\u201d\nIn direct examination the prosecutrix testified that when she went to the police station at approximately 9:00 P.M., she walked past the open door to a room in which she saw defendant standing, alone. She said to the officer with her, \u201cThat is him.\u201d Defense counsel objected stating, \u201cI want to renew my motion again, Judge, that I made outside the presence of the jury as to identification.\u201d The court overruled the objection. At the conclusion of her testimony defense counsel moved to suppress the identification testimony and the court denied the motion.\nCiting People v. Dennis, 47 Ill.2d 120, the People argue that the motion was \u201c*** tardy and was never presented to the trial court in a proper written motion ***.\u201d Good trial practice would require that a motion to suppress be in written form, but in the absence of such requirement in the statutes or in our rules we do not hold that a written motion is mandatory. Good trial practice, however, would require that in the absence of a written motion there be an offer of proof from which the trial judge could have determined whether, as contemplated by People v. Dennis, this was an \u201cappropriate case\u201d (47 Ill.2d 120, at 127) for such a hearing. Although here there was neither a written motion nor an offer of proof, the record contains the testimony of the prosecutrix, the police officers and the defendant with respect to what occurred in the police station prior to and at the time the identification was made. No contention is made that, had a hearing been held, other or additional testimony might have been adduced. We have examined the testimony and we hold that assuming, arguendo, that the trial court erred in refusing to hold a hearing, the error was harmless.\nDefendant contends that because his arrest and detention were illegal, the prosecutrix\u2019s identification testimony was \u201ca product of the unlawful seizure of his person and consequently all testimony relating thereto was improperly admitted into evidence against him,\u201d and argues that at the time of his arrest there were no reasonable grounds to believe that he had committed an offense. Further, he argues, his detention was illegal because, until after the impermissibly suggestive identification by the prosecutrix, he was not told the nature of the charge.\nThe record shows that the prosecutrix told the police she had just been raped, told them where the crime had been committed, and that the man had thrown some papers out of the window of the car. The testimony shows that when she and the police went to the scene, in a vacant area comprising approximately 5 acres, they found two check stubs bearing his name and a check payable to defendant. This evidence shows that at the time of the arrest the police officers knew of reasonable grounds to believe defendant had committed an offense.\nDefendant argues that this confrontation with the prosecutrix at the police station, which occurred before he was represented by counsel \u201cwas so wanting in fairness as to deprive him of due process of law.\u201d The People contend that the confrontation, under the circumstances in which it occurred did not require the presence of counsel and did not violate defendant\u2019s right to due process. Although defendant testified that he was standing in the room alone, that the door was closed, and that when the door was opened he saw the prosecutrix standing in the hall with several police officers, the record contains sufficient testimony to support the People\u2019s contention that the prosecutrix was being escorted to the office of the watch commander at the police station and that her view of the defendant was coincidental. The record does not support defendant\u2019s contention that the police officers intended and planned the confrontation, or that they had suggested to the witness the identity of the defendant.\nWe have considered defendant\u2019s argument based upon Davis v. Mississippi, 394 U.S. 721, 22 L.Ed.2d 676, 89 S.Ct. 1394, and find no basis in the record to support the contention that the arrest here was of the \u201cinvestigatory\u201d nature which Davis proscribes. The record does not support the arguments based on alleged Wade-Gilbert (United States v. Wade, 388 U.S. 218, 18 L.Ed.2d 1149, 87 S.Ct. 1926; Gilbert v. California, 388 U.S. 263, 18 L.Ed.2d 1178, 87 S.Ct. 1951) violations and presents no reason for us to reconsider at this time, as defendant urges us to do, our decision in People v. Palmer, 41 Ill.2d 571.\nThe only attack on the in-court identification of defendant is made in support of the contention that defendant was not proved guilty beyond a reasonable doubt. Defendant argues that \u201cthe circumstances surrounding the attack did not afford her a favorable opportunity for a clear and positive identification of the defendant as her assailant.\u201d The prosecutrix testified that the place where the man entered her car was well lighted and that the place where the offense was committed was approximately 60 feet from the wall of a factory building on which there were lights. She testified further that she had ample opportunity to see her attacker as she drove to the scene and when he drove her car after the offense was committed. The identification testimony was sufficient to support the judgment.\nDefendant contends next that the court erred in admitting into evidence hearsay testimony so prejudicial as to require reversal. The court permitted a police officer, over objection, to testify that \u201cthe victim showed us where this attack had taken place\u201d and also permitted him, over objection, to testify that he recognized the People\u2019s exhibit comprised of the check stubs and check as the objects \u201cthat we found where [the prosecutrix] showed us.\u201d This testimony was properly admitted. Stevens v. People, 158 Ill. 111.\nThe officer was also permitted to testify, over objection, that at the police station he told the prosecutrix \u201cthat we had arrested a suspect *** and that I would like her to view this subject and either identify him in my presence and in his presence.\u201d The following ensued:\n\u201cQ. And what, if anything, did she say to you?\nA. She said she had observed \u2014 when she came into the station she had already seen the man that had attacked her.\nMR. BRODY: Judge, let there be an objection and let there be a motion for a mistrial, so that the record will properly reflect my feeling here.\nTHE COURT: Motion for a mistrial overruled.\nMR. DEVITO: Proceed, Sergeant.\nTHE WITNESS: I asked her at that time if she was sure, and she said yes. I then escorted her into the room, where Mr. Canale was and she then\u2014\nMR. BRODY: Objection, Judge.\nTHE COURT: That is all. You have said enough.\u201d\nThe admission of this testimony was error. (People v. Denham, 41 Ill.2d 1; People v. Harrison, 25 Ill.2d 407; People v. Krejewski, 332 Ill. 120; People v. Lukoszus, 242 Ill. 101.) We hold, however, that in view of the positive identification made by the prosecutrix and the corroborative circumstances of the finding of defendant\u2019s papers at the scene, the error does not require reversal.\nIt is next contended that the court erred in permitting a detective to testify with respect to the laboratory report of a fingerprint found on the outside of the window of the driver\u2019s side of the prosecutrix\u2019s automobile. Although this testimony was clearly hearsay and should not have been admitted, the witness stated that the fingerprint was not that of the defendant, and we hold the error to have been harmless.\nDefendant contends next that improper closing argument was so prejudicial as to require reversal. The assistant State\u2019s Attorney commented on the failure of the defendant to produce members of his family other than his mother to testify in support of his alibi. The court sustained an objection to the argument and instructed the jury to disregard it. Under the circumstances, viewed in the context of the argument in its entirety, reversal is not required.\nDefendant contends next that the jury\u2019s verdicts were the product of a coercive admonition by the trial judge. The record shows that the jury retired to deliberate at 1:30 P.M. At 6:46 P.M. the jury foreman, in open court, with the jury, the defendant and counsel present, advised the trial court that the jury had not been able to reach a verdict. After some discussion between court and counsel outside the hearing of the jury as to whether the jury should be permitted to deliberate further, be sequestered for the night or permitted to disperse and return in the morning, the following ensued:\n\u201cTHE COURT: Mr. Foreman, I will ask you one more question. Did you say, or I am asking you this, does it appear to be hopeless of your reaching a verdict if you were to further continue to deliberate?\nA JUROR: I can\u2019t honestly answer that, your Honor.\nTHE COURT: Well, I\u2019ll let you go back and deliberate longer. I wanted to get this information. If it\u2019s hopeless, why, there would be no other alternative. But if you think you can reach a verdict, why, I\u2019ll let you go to it. All right.\u201d\nApproximately one hour later the jury returned to the court room and the following ensued:\n\u201cTHE COURT: Mr. Foreman, you have not been able to reach a verdict?\nA JUROR: No, sir, we have not.\nTHE COURT: Does there seem to be a possibility of your reaching one?\nA JUROR: Yes, I-\nTHE COURT: Within a reasonable time?\nA JUROR: I believe we could, in my best opinion.\nTHE COURT: You think you could reach one?\nA JUROR: I would like to try once more, your Honor.\u201d\nFollowing further discussion between court and counsel outside the hearing of the jury the court said: \u201cAll right. You can go back and try again. Let me say this. Jurors, when they go in to deliberate, ought to be able to exchange ideas. There ought to be discussions, listening to the other side, the other side listening to you, and maybe by doing this, one side or another may think that they are wrong. Sometimes when you discuss it, you find you have a misunderstanding about something. Discuss it fairly with the others so that you, if possible, can come up with a verdict, if you do not do violence to your opinion.\u201d Although not reflected by the record defense counsel states that the verdicts of guilty were returned approximately 30 minutes later.\nIn support of his contention defendant cites People v. Richards, 95 Ill.App.2d 430. In that case the foreman of the jury announced that his group was \u201chopelessly deadlocked.\u201d The trial judge then gave an \u201cAllen type\u201d instruction (Allen v. United States, 164 U.S. 492, 41 L.Ed. 528, 17 S.Ct. 154), the jury retired and returned 18 minutes later with a verdict of guilty. The appellate court discussed this type of instruction at considerable length and was critical of its \u201cheed the majority\u201d theme and its emphasis on \u201cthe futility of a retrial of the issues.\u201d It concluded that the giving of the instruction was an abuse of discretion.\nHere the jury was not \u201chopelessly deadlocked.\u201d On the contrary, the jury foreman, before the admonition was given, indicated that a verdict was possible within a reasonable time. Furthermore, the admonition did not have a \u201cheed the majority\u201d theme or mention a retrial of the issues. The trial court\u2019s admonition to the jury was not error.\nCiting People v. Levy (1965), 15 N.Y.2d 159, 256 N. Y.S.2d 793, 204 N.E.2d 842, defendant contends that the conviction on the charge of aggravated kidnapping must be reversed for the reason that the confinement and asportation of the prosecutrix were incidental to the rape.\nIn Levy, as a couple named Mosler drew up in front of their home, two armed men entered their automobile. While one of the robbers drove, the other took the woman\u2019s jewelry and the man\u2019s wallet and they then left the car. The length of the drive was 27 city blocks and took 20 minutes. The two robbers and a co-conspirator were each convicted and sentenced to 20 years to life for kidnapping. Each of them was also convicted of robbery for which one was sentenced to a term of 15 to 30 years, another 15 to 25 years and the third 10 to 11 years. The Court of Appeals of New York, by a 4 to 3 vote, reversed the kidnapping convictions and unanimously affirmed the robbery convictions.\nIn reaching its decision the New York court first noted that the minimum penal sentence for kidnapping is 20 years to life, as compared with rape which carries a maximum sentence of 20 years, and robbery which carries a maximum sentence of 30 years. It then observed that the statutory definition of kidnapping would usually encompass crimes of rape and robbery since detention or confinement usually accompany these crimes. The court concluded that the legislature did not intend the broad definition given to the crime of kidnapping to cover the restraints which are incident to and an integral part of crimes such as robbery and rape.\nThe apparent rationale and purpose of Levy was to prevent, in an excess of prosecutorial zeal, the elevation of the lesser crimes, under New York law, of rape and robbery to the more serious crime of kidnapping. (People v. Miles (1969), 23 N.Y.2d 527, 297 N.Y.S.2d 913, 245 N.E.2d 688, cert, denied (1969), 395 U.S. 948, 23 L.Ed.2d 467, 89 S.Ct. 2028.) Unlike New York, aggravated kidnapping is not, under Illinois law, a more serious offense than rape or robbery. The penalty provided for aggravated kidnapping other than for ransom was an indeterminate sentence of not less than 2 years (Ill.Rev. Stat. 1969, ch. 38, par. 10 \u2014 2(b)(2)), for rape an indeterminate sentence of not less than 4 years (ch. 38, par. 11 \u2014 1(c)), for robbery a sentence of 1 to 20 years (ch. 38, par. 18 \u2014 1(b)), and for armed robbery an indeterminate sentence of not less than 2 years. The statutory pattern which produced the Levy \u2014 Lombardi doctrine in New York (see also People v. Lombardi (1967), 20 N. Y.2d 266, 282 N.Y.S. 519, 229 N.E.2d 206) does not exist in Illinois.\nOther opinions which have considered the Levy rule in connection with rapes or assaults have dwelt primarily on the distance the victim was moved and the length of time she was detained. State v. Ayers (1967), 198 Kan. 467, 426 P.2d 21; State v. Morris (1968), 281 Minn. 119, 160 N.W.2d 715; Samuels v. State (Del.Sup.Ct. 1969), 253 A.2d 201; Lester v. State (1970), 9 Md.App. 542, 266 A.2d 361; and State v. Ginardi (1970), 111 N.J. Super. 435, 268 A.2d 534, all rejected the rule and affirmed kidnapping convictions. In Ayers the rape victim was asported 11 feet and in Morris the victim was moved only 100 to 150 feet and the assault lasted only 5 minutes.\nIn People v. Bishop, 1 Ill.2d 60, the accused forced the victim to drive him over various streets and roads for a period of 4 hours, robbed him of money, jewelry and his automobile, and released him. This court rejected the defendant\u2019s contention that there can be no secret confinement in an automobile in motion on the highway. In People v. Landis, 66 Ill.App.2d 458, the appellate court affirmed a conviction of aggravated kidnapping where the defendant forced his way into a woman\u2019s car at gun point, drove around the immediate vicinity, robbed her and attempted to rape her, and in People v. Masterson, 79 Ill.App.2d 117, a conviction for aggravated kidnapping was affirmed where the defendant and a companion forced two girls into their car and later raped them while driving around various country roads.\nThe evidence that the prosecutrix was driven some distance from her home and confined for a period of 45 minutes during which she was raped supports the conviction for aggravated kidnapping.\nWe find no reversible error and the judgment of the circuit court of Cook County is affirmed.\nJudgment affirmed.", "type": "majority", "author": "MR. JUSTICE GOLDENHERSH" }, { "text": "MR. JUSTICE SCHAEFER,\ndissenting:\nThe prosecutrix testified that before her assailant drove the car away from the place where the sexual offenses took place, he asked her if some papers on the front seat were hers or his, \u201cand I said, \u2018Well, they might be mine. They might be receipts from a delivery, and he picked them up and threw them out of the car.\u2019 \u201d After she was let out of the car, she returned at once to the scene of the offense, with her husband and two police officers. There Officer Bickel found \u201cthree pieces of paper, two check stubs and a check itself.\u201d\nTo find the defendant guilty it is necessary to believe that after committing the crimes he threw his own uncashed payroll check bearing his name and two payroll check stubs, readily identifiable as his, out of the car at the scene, thus providing evidence that was sure to lead the police to him. On the other hand, if someone else committed the offense, making sure that those documents were left at the scene of the crime would provide the criminal with an excellent defense. The defendant testified that he first missed the stubs and check when he reached in his pocket to give the check to his mother after dinner. His mother corroborated his testimony.\nIdentification of the wrongdoer thus became critically important. The defendant was not identified in a lineup. His oral motion for a hearing as to the admissibility of the police station identification was denied, as the majority opinion points out. At the trial, Officer Bickel testified that after the defendant\u2019s check had been found and the defendant had been arrested and taken to the police station, he went to the home of the prosecutrix and brought her to the station. He testified that on the way he \u201cprobably\u201d told her that an arrest had been made and that someone was at the police station for her to identify. At the station, on their way to the watch commander\u2019s office, they passed the room in which, Officer Bickel testified, were the defendant, Sergeant Conliss and a detective. The door was open, and Bickel told Sergeant Conliss that this was Mrs.-----. \u201cShe hesitated and we kept walking towards the watch commander\u2019s office.\u201d\nThe majority justifies this conduct on the ground that her view of the defendant was \u201ccoincidental,\u201d and that \u201c[t] he record does not support defendant\u2019s contention that the police intended and planned the confrontation, or that they had suggested to the witness the identity of the defendant.\u201d As to the latter observation, I think that the record does show that the police had suggested to the witness the identity of the defendant. Just how the defendant could have gone about showing that the confrontation was \u201cintended and planned\u201d is not readily apparent. The law does not impose any such burden upon a defendant.\nAt 6:46 P.M., after the jury deliberated for five hours and 15 minutes, the foreman advised the court that the jury was unable to reach a verdict. The following colloquy then took place:\n\u201cTHE COURT: Do you think if you were permitted to continue your deliberation you will be able to reach a verdict?\nTHE JUROR: I can\u2019t answer that briefly,\nYour Honor. There is doubt involved, and there\u2019s\njust not enough to go on that we could--\u201d.\nThereafter the jury was told to return for further deliberation. An hour later the jury was again returned into open court and the foreman again advised the court that they had been unable to reach a verdict. The court instructed the jury to go back and try again. Only then was the verdict of guilty returned.\nIn my opinion the evidence did not establish the defendant\u2019s guilt beyond a reasonable doubt.", "type": "dissent", "author": "MR. JUSTICE SCHAEFER," } ], "attorneys": [ "BERNARD B. BRODY and WILLIAM J. NELLIS, both of Chicago, for appellant.", "WILLIAM J. SCOTT, Attorney General, of Springfield, and EDWARD V. HANRAHAN, State\u2019s Attorney, of Chicago (JAMES B. ZAGEL, Assistant Attorney General, and ROBERT A. NOVELEE and ROBERT L. BEST, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "(No. 42753.\nTHE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. THOMAS A. CANALE, Appellant.\nOpinion filed May 22, 1972.\nSCHAEFER, J., dissenting.\nBERNARD B. BRODY and WILLIAM J. NELLIS, both of Chicago, for appellant.\nWILLIAM J. SCOTT, Attorney General, of Springfield, and EDWARD V. HANRAHAN, State\u2019s Attorney, of Chicago (JAMES B. ZAGEL, Assistant Attorney General, and ROBERT A. NOVELEE and ROBERT L. BEST, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0107-01", "first_page_order": 129, "last_page_order": 143 }