{
  "id": 2425641,
  "name": "The People of the State of Illinois, Defendant in Error, vs. Bert Cunningham et al. Plaintiffs in Error",
  "name_abbreviation": "People v. Cunningham",
  "decision_date": "1921-12-22",
  "docket_number": "No. 14101",
  "first_page": "376",
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  "last_updated": "2023-07-14T21:26:06.170820+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [],
    "parties": [
      "The People of the State of Illinois, Defendant in Error, vs. Bert Cunningham et al. Plaintiffs in Error."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Carter\ndelivered the opinion of the court:\nPlaintiffs in error were indicted, and after a trial before a jury were convicted, in the criminal court of Cook county of robbing B. N. Hunding and taking from him certain money, the property of the Hunding Dairy Company, a corporation. The cause has been brought here on writ of error for review.\nThe evidence shows that the Hunding Dairy Company has its offices and retail milk depot at 6949 Stony Island avenue, in Chicago. The sales room or milk depot is in front and the offices in the rear, and in order tO' enter the offices one must pass through the milk depot. The evidence shows that plaintiff in error Campbell came into the milk depot and purchased a bottle of milk in the late afternoon of November 27, 1920, paid for it and left the place. Immediately afterward plaintiff in error Cunningham, followed by plaintiffs in error Crane and Jackson, came in, laid down a quarter and ordered a bottle of milk. He then pulled a revolver and thrust it in the face of Kirbeclc, secretary of the company, and guarded him while Crane and Jackson rushed through the swinging doors into the inner office, covered Hunding and two of the women employees with a revolver and took from the table the returns of the company for the day, about $700 in United States bank notes and about $20 in silver. This took about two minutes\u2019 time, and Cunningham, Crane and Jackson ran through the doors and away with their plunder. Campbell, Cunningham and Jackson were arrested in or near a public garage at 4439 Grand boulevard on January 17, 1921, Campbell having a loaded revolver in his pocket at the time. The police officers testified that when Campbell was questioned about the revolver he said he got it from Cunningham, and Cunningham admitted to the officers that it was his. Kirbeck, secretary of the dairy company, testified that he identified all four of the plaintiffs in error. Jackson and Crane were identified by Hunding. One of the women employees identified Jackson, and the other identified both Jackson and Crane as the two men who- entered the inner office and took the money from the table.\nSome question was raised in the briefs of plaintiffs in error that venue was not proved by the record. On motion of the State\u2019s attorney an amended bill of exceptions was filed in which the venue is shown to have been proven.\nIt is contended by counsel for the State that the abstract prepared and filed by counsel for plaintiffs in error is not complete or correct, and they endeavor in their briefs to obviate this difficulty by referring to the proper pages of the record. Under rule 14 of this court it is provided that if opposing counsel think that the abstract presented is not accurate or sufficient for a full understanding of the questions involved for decision, the opposite party \u201cshall file a further abstract making necessary corrections or additions. Such further abstract may be filed if the original abstract is incomplete or inaccurate in any substantial part.\u201d The proper practice, therefore, would have been for counsel for the State to file a further abstract making the necessary corrections or additions, showing accurately the points at issue raised by the briefs.\nIt is urged that error was committed on the trial of the case in permitting the State\u2019s attorney to ask certain questions of plaintiff in error Crane as to his having been under arrest previously. It had been brought out on the direct examination of this witness by his counsel that he had been previously arrested on another charge and discharged by the trial court. While the court should have sustained objections to the questions of the State\u2019s attorney as to the previous arrests, in view of the facts in this case we do not think any reversible error was committed.\nWhile a witness for the State, Hunding, was on the stand and testifying in regard to what took place at the time of the transaction in question, plaintiff in error Jackson, who was sitting between counsel for plaintiffs in error, exclaimed, apparently loud enough to be heard by the court and counsel as well as by the jury and witness, \u201cThat man is lying, and he knows it!\u201d It appears that Jackson had been previously sworn to testify but had not testified and did not testify during the trial. At the close of the testimony for the defense the State\u2019s attorney trying the case stated publicly that in view of the statement of Jackson that the witness Hunding was telling a lie he would like to cross-examine him. Objection was made on the part of counsel for Jackson to such cross-examination, counsel stating that Jackson had not testified. Finally Jackson\u2019s statement was stricken out and an instruction given by the court that \u201cthe jury will disregard any statement made by the defendant Jackson.\u201d Objection was made to the action of the State\u2019s attorney in this regard as calling attention to the fact, contrary to the statute, that Jackson had not testified. The State\u2019s attorney did not. state that Jackson had not testified. The statement that he had not testified was made by his own counsel, and in view of the fact that he had publicly announced while the witness Hunding was on the stand that Hunding had testified falsely, we do not think that he is in any position to complain of the action of the State\u2019s attorney in requesting permission to cross-examine him in regard to his statement that the witness was lying. While Jackson himself had not testified except in making this public statement when not on the witness stand, the other plaintiffs in error, had all testified, and we cannot see how those others were in any way injured by the State\u2019s attorney asking to cross-examine Jackson.\nObjection is also raised by counsel for plaintiffs in error that the record shows that after the close of all the testimony by the defense two police officers employed by the city of Chicago were permitted to give their testimony in rebuttal when it should have been given as a part of the direct testimony of the State. At the close of the testimony for the State the State\u2019s attorney trying the case stated to the court that the police officers whom he desired to have testify in the case were before the grand jury and that he would ask permission to put them on when they returned, and with that reservation the State rested. No objection was made at that time to this reservation, and these two police officers afterwards testified to' the arrest of Campbell, Cunningham and Jackson and the finding of a revolver on the person of Campbell; that Campbell said that it had been given to him by Cunningham, and Cunningham admitted that it was his. The general rule is that the order in which testimony competent and relevant to the issues is to be admitted is largely in the discretion of the trial court, and that reviewing courts will not reverse as to such order of admission except in cases of manifest abuse. (Thompson on Trials,\u20142d ed.\u2014sec. 344; 28 R. C. L. 586; Jones on Evidence,\u20142d ed.\u2014sec. 814; People v. Shortall, 287 Ill. 150; Hirsch & Sons\u2019 Iron Co. v. Coleman, 227 id. 149.) We cannot say on this record that there was a manifest abuse by the trial court in admitting this evidence after the close of the testimony on behalf of the defense. It seems clear from the evidence that neither plaintiffs in error nor their counsel were in any way surprised or put at a disadvantage by this evidence coming in at the time it did.\nIt is further urged that error was committed by the trial court in permitting evidence to be offered as to a revolver being, found in Campbell\u2019s possession and on his person when arrested two months after the alleged crime was committed. We think under the reasoning of this court in People v. Scott, 261 Ill. 165, and People v. Maciejewski, 294 id. 390, no error was committed in this regard.\nIt is also insisted that there is a variance between the indictment and the proof, in that the name of the corporation that owned the money was alleged in the indictment to be the \u201cHunding Dairy Co.\u201d and the proof showed that the name was \u201cHunding Dairy Company.\u201d It has been more than once said by this court that a variance between the name alleged in the indictment and that proven by the evidence is not regarded as material unless it shall be made to appear to the court that the jury were misled by it or that some substantial injury was done to the accused thereby, such as that by reason thereof he was unable to intelligently make his defense or was exposed to the danger of a second trial on the same charge. (1 Wharton on Crim. Evidence, sec. 288.) The alleged variance as stated by counsel for plaintiffs in error in their briefs here does not appear to have been raised in the trial court, and under the reasoning of this court in People v. Weisman, 296 Ill. 156, and People v. Melnick, 274 id. 616, plaintiffs in error can not avail themselves of any claim on this point of variance.\nIt is also urged that the conviction is erroneous because the indictment charged that each of the plaintiffs in error was then and there armed with a dangerous weapon, to-wit, a certain revolver, and the proof failed to show that either Campbell or Crane was armed with a revolver. We think the evidence clearly showed that all four of the plaintiffs in error visited the office of the Hunding Dairy Company with a common purpose, and that three of them, at least, were armed with revolvers at the time and used the same to coerce the employees of the dairy company into giving up the money, and therefore they are, at the least, accessories before the fact to the aggravated offense of robbery with a dangerous weapon and could rightly be indicted and convicted as principals. This has long been the settled law of this State. Lionetti v. People, 183 Ill. 253; People v. VanBever, 248 id. 136; People v. Snyder, 279 id. 435, and authorities there cited.\nIt is further strenuously argued that the evidence does not justify the conviction; that the lack of identification of certain of the plaintiffs in error, especially Campbell and Cunningham, in the light of the evidence as to their not being at the place at the time of the perpetration of the offense, was sufficient tO' show that the jury must have been moved by passion or prejudice in order to convict them of the crime in question. It is also insisted that Cunningham was only identified by the witness Kirbeck as having any connection with the robbery in question. We think counsel for plaintiffs in error are in error. One of the police officers testified that Campbell told him after his arrest that he went to the\" dairy to buy the milk \u201cto see if the coast was clear,\u201d and that he did this for the persons who did the robbery. The jury had before them all the witnesses who testified, both as to identification and as to the alibis of plaintiffs in error. It was a question of credibility between the witnesses for the State and those for the defense,\u2014a question peculiarly within the province of the jury. The jury are not compelled to be controlled by the number of witnesses testifying as to the alibis or as to the identification of the accused. They evidently gave credence to the testimony for the State in regard to identification and disbelieved the alibi testimony of the plaintiffs in error. In view of all the testimony in the record we cannot say that the verdict was not sustained by the evidence. People v. Deluce, 237 Ill. 541; People v. Stephens, 297 id. 91.\nWe find no reversible error in the record. The judgment of the criminal court of Cook county will therefore be affirmed.\nJudgment affirmed.",
        "type": "majority",
        "author": "Mr. Justice Carter"
      }
    ],
    "attorneys": [
      "Irwin R. Hazen, and John Lupe, (Thomas E. Swanson, of counsel,) for plaintiffs in error.",
      "Edward J. Brundage, Attorney General, Robert E. Crowe, State\u2019s Attorney, and Edward C. Fitch, (Edward E. Wilson, Clyde C. Fisher, and William Scott Stewart, of counsel,) for the People."
    ],
    "corrections": "",
    "head_matter": "(No. 14101.\nJudgment affirmed.)\nThe People of the State of Illinois, Defendant in Error, vs. Bert Cunningham et al. Plaintiffs in Error.\nOpinion filed December 22, 1921.\n1. Criminal law\u2014when defendant may be cross-examined as to previous arrest on another charge. Where it has been brought out on the direct examination of the defendant by his counsel that he had previously been arrested on another charge and discharged by the trial court, it is not error to permit the State, on cross-examination, to ask questions of the defendant as to his previous arrest.\n2. Same\u2014order of admission of testimony rests in discretion of trial court. The order in which testimony is to be admitted is largely in the discretion of the trial court, and there is no abuse of such discretion where the court permits two police officers to testify for the State after the close of the defendants\u2019 evidence, the court and the defendants having been advised at the close of the State\u2019s evidence that such testimony would be offered as soon as the witnesses returned from service before the grand jury.\n3. Same\u2014when evidence of possession of revolver by defendant when arrested is admissible. Where defendants are being tried for a robbery which was proved to have been committed by parties armed with revolvers, it is not error to permit the admission of evidence as to a revolver being found on one of the defendants when he was arrested two months after the alleged crime was committed.\n4. Same\u2014when variance is not material. In a prosecution for robbery, a variance between the indictment and the proof as to the name of the owner of the property is not material unless it is made to appear to the court that the jury were misled by it or that some substantial injury was done to the accused thereby, so that he is unable intelligently to make his defense or is exposed to the danger of a second trial on the same charge.\n5. Same\u2014question of variance must be raised in the trial court. On a writ of error defendants convicted of robbery cannot avail themselves of any claim on the point of a variance between the indictment and the proof as to the name of the owner of the property, where no question of variance was raised in the trial court.\n6. Same\u2014proof of participation as accessories will sustain conviction of defendants charged as principals. Although the proof in a prosecution for robbery with a dangerous weapon does not show that all the defendants were armed with revolvers, it will be sufficient to sustain the conviction of any who were not proved to have been armed if the evidence shows that they participated in the offense which was carried out by those who were armed, as accessories may be indicted and convicted as principals.\n7. Same\u2014verdict of jury is not to be controlled by number of witnesses testifying. Where a conviction rests upon the identification of the defendants who have set up alibis as a defense th\u00e9 credibility of the witnesses is a question peculiarly within the province of the jury, and the jury are not compelled to be controlled by the number of witnesses testifying as to the alibis nor as to the identification of the defendants.\nWrit of Error to the Criminal Court of Cook county; the Hon. Hugo M. Friend, Judge, presiding.\nIrwin R. Hazen, and John Lupe, (Thomas E. Swanson, of counsel,) for plaintiffs in error.\nEdward J. Brundage, Attorney General, Robert E. Crowe, State\u2019s Attorney, and Edward C. Fitch, (Edward E. Wilson, Clyde C. Fisher, and William Scott Stewart, of counsel,) for the People."
  },
  "file_name": "0376-01",
  "first_page_order": 376,
  "last_page_order": 383
}