{ "id": 5301837, "name": "The People of the State of Illinois, Defendant in Error, vs. Anthony DeLordo et al. Plaintiffs in Error", "name_abbreviation": "People v. DeLordo", "decision_date": "1932-10-22", "docket_number": "No. 21444", "first_page": "148", "last_page": "162", "citations": [ { "type": "official", "cite": "350 Ill. 148" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "343 Ill. 146", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5255595 ], "opinion_index": 0, "case_paths": [ "/ill/343/0146-01" ] }, { "cite": "280 Ill. 32", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4890968 ], "opinion_index": 0, "case_paths": [ "/ill/280/0032-01" ] }, { "cite": "334 Ill. 412", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5220721 ], "opinion_index": 0, "case_paths": [ "/ill/334/0412-01" ] }, { "cite": "139 Ill. 412", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3006742 ], "opinion_index": 0, "case_paths": [ "/ill/139/0412-01" ] } ], "analysis": { "cardinality": 776, "char_count": 22725, "ocr_confidence": 0.778, "pagerank": { "raw": 2.4479711434991305e-07, "percentile": 0.8037644279647191 }, "sha256": "fb70e97a20eead066d81d2d8b325709100299a9af69380ec9a03e2b172b7c981", "simhash": "1:2af7300aff479d7a", "word_count": 4128 }, "last_updated": "2023-07-14T17:00:26.687497+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "The People of the State of Illinois, Defendant in Error, vs. Anthony DeLordo et al. Plaintiffs in Error." ], "opinions": [ { "text": "Mr. Justice Duncan\ndelivered the opinion of the court:\nPlaintiffs in error, Anthony DeLordo and Leslie Kidd, (herein called defendants,) were in the criminal court of Cook county indicted, tried and convicted of the crime of robbery while armed with a dangerous weapon, to-wit, a pistol. Their motions for new trial and in arrest of judgment were overruled and they were sentenced to imprisonment in the penitentiary for an indefinite term of from one year to life. They sued out of this court a writ of error for a review of the record and at the June term, 1932, submitted the cause on briefs and arguments.\nThe evidence for the People is to the effect that two men armed with loaded pistols entered the office of Sidney Wanzer & Sons, located on the second floor of the building at 130 West Garfield boulevard, in the city of Chicago, at about 10:30 on the morning of Sunday, June 9, 1929, and robbed Walter A. Tucker, the cashier and book-keeper of that firm, of $230, the property of said firm. Tucker and Herbert Bergfelt, employees of Sidney Wanzer & Sons, who saw the robbery committed, identified both of the defendants at the trial as the robbers. They testified that the defendants wore gray suits when they committed the robbery, and gray caps, the visors of which were split and which were pulled down over the upper part of their faces so that their noses were the only part of their faces that could be seen. Another witness for the People, Herman Meyers, a milk salesman of Sidney VVanzer & Sons, testified that he saw tire robbery committed, and that the defendant Kidd was one of the robbers and that he knew at that time that he was one of them, and that both of them had pistols in their hands. He further testified that he did not know for sure whether or not the defendant DeLordo was one of the robbers. On cross-examination he stated that he did not tell the police officers at the police station that Kidd was one of the robbers, and at that time did not remember that he knew Kidd. He further stated in his evidence, \u201cI do not know the defendant Leslie Kidd.\u201d\nThe evidence of the three witnesses aforesaid is, in substance, that at the time and place of the robbery there were six or more employees in the office of the firm; that after one . of the robbers, DeLordo, had taken the money in the custody of Tucker at the cashier\u2019s cage, the robbers asked Tucker to open the safe which was in the office; that he told them that he did not know the combination to the safe and could not open it, and that they then immediately started to leave the office through the hall and through the front door. Shots were fired in the hallway leading to the front door, and the robbers ran back into the office, where more shots were fired by the robbers and a policeman. When the robbers returned to the office from the hall they had the visors of their caps pulled up and the entire face of each robber was visible to the six or more employees, who were then lying on the floor to escape the bullets that were flying over them and which were coming from the revolvers of the robbers and Kelly, the police officer. Immediately after the firing ceased the robbers ran into another room adjoining the office and then ran out of the building. The employees, including the witnesses aforesaid, were all lying down on the floor, and most of them were under the tables in the office room during the time the robbers and the police officer were firing their pistols.\nPolice officer James Kelly testified that he had heard the alarm given that the robbery in question was taking place; that he was on his way to the building, and that as he entered the door the two robbers were trying to make their escape through that door; that they fired at him and he fired at them, and that seven or more shots were fired by the robbers; that he got a good look at Kidd; that his cap was not at that time pulled down over his face; that prior to that day he had never seen Kidd; that he (the officer) was dressed in a blue uniform; that he did not get a good view of the other robber and could not identify the other defendant as one of the robbers, but he did testify that he was able to identify Kidd as one of the robbers whom he met that day and who fired shots at him.\nIt was stipulated on the trial that DeLordo was of the age of twenty-three years and that Kidd was of the age of twenty-two years.\nThe defendants testified in their own behalf and stated that they did not commit the robbery in question and that they were not in the neighborhood where it was committed, on the day it occurred. Each defendant by his evidence accounted for his whereabouts during the whole of the day on which the robbery was committed and in a manner entirely inconsistent with the People\u2019s contention that the defendants were the guilty parties.\nWe have not deemed it necessary to set forth the evidence in this record in greater detail, as the judgment and sentence of the defendants must be reversed and the cause remanded for a new trial because of the erroneous rulings and prejudicial errors of the trial court, which deprived the defendants of a fair and impartial trial. The parts of the record which disclose the erroneous rulings and prejudicial remarks of the court require more extensive detail to show the necessity of a reversal of the judgment.\nAfter twelve jurors had taken their seats in the jury box the judge made a general statement to them of the nature of the case to be tried. He then stated that the jurors were the same men who sat on a jury in a criminal case the day preceding the calling of this case for trial and asked the jurors if they knew any of the witnesses or the attorneys on either side of the case. There was no response by any of the jurors to that question. The defendants were tiren called by the court, and each of them and their names were made known to the jurors. The court informed the jurors that the defendants were represented by Burke & Crane as attorneys and that Marowitz and Wahl represented the State. The court then informed the attorneys in the case that they were in the case tried \u201cyesterday\u201d and that after knowing the jurors they were informed as to their requirements. Crane, for the defendants,, protested to the court that the defendants in this case were not the same defendants in the case tried the day before and that his clients had the right to examine the jurors. The court replied that if there were any of the jurors that were not on the jury \u201cyesterday\u201d they could question and qualify those jurors. The court then said to the twelve jurors: \u201cHaving heard what this case is about and knowing the principles of law that govern the trial in a criminal case, can you be fair and impartial to both sides in this case, follow the law, listen to the evidence and return your verdict on the evidence?\u201d The jurors replied, \u201cYes, sir.\u201d\nThe court having indicated to the attorneys that they should proceed with the selection of the jury, Marowitz asked one of the jurors his name. The court at once stopped the juror from answering the State\u2019s attorney by exclaiming: \u201cNo! no! no! All these men answered those questions yesterday and you accepted them. You don\u2019t have to get the names of the old jurors.\u201d It being made apparent that the court would not tolerate further questions on the voir dire examination of the jurors who sat in the criminal case the day before, the State\u2019s attorney tendered the whole panel of twelve as jurors in the case. Crane then proceeded to interrogate one of the jurors, and after ascertaining his name and residence and that he sat on the other criminal case tried the day before this case was called, said to the juror: \u201cThe court will undoubtedly instruct you that before you can find the defendants guilty the State must prove its case beyond a reasonable doubt and to a moral certainty that they are guilty as charged, and if you then cannot \u2014 \u201d The court at once interrupted the attorney and said: \u201cNo! no! no! That was all asked him yesterday. You accepted him and that is all clear.\u201d Crane replied: \u201cYour honor, this is not the same case or the same defendants. I wish to object.\u201d The court replied: \u201cThat is not the law. The Supreme Court has laid down the law.\u201d Crane then said to the court he wanted to tell the jury what was the law of the case on trial. The court refused outright to let counsel explain to the jury the law by which they should be guided in rendering their verdict. After further questions were asked by counsel, which were overruled by the court, the following took place:\nMr. Crane: \u201cI tender the first four.\nThe court: \u201cWait a minute; he tendered you the first twelve.\nMr. Crane: \u201cYou know, do you not, gentlemen, what this case is about? You sat on a case yesterday?\nThe court: \u201cNo, sir; no, sir; they did not.\nMr. Crane: \u201cMost of them.\nThe court: \u201cGentlemen, you understand that you are to try this case upon the testimony in this case; you understand that, don\u2019t you?\nThe jurors: \u201cYes, sir.\nThe court: \u201cAll right; they have been qualified along these lines.\nMr. Crane: \u201cBut, your honor, these are not the same defendants; these are different defendants; they may be interested in knowing who are the jurymen and what their occupations are.\nThe court: \u201cThat don\u2019t make any difference; you got all those yesterday.\nMr. Crane: \u201cFirst gentlemen; what is your name?\nA. \u201cCecil J. Chapel.\nThe court: \u201cYou had the names of these men yesterday.\nMr. Crane: \u201cNo, I did not; I was not in that case.\nThe court: \u201cYour associate did; they were obtained on the part of your office.\nMr. Burke: \u201cWe represent separate defendants, Judge.\nThe court: \u201cYou were here yesterday.\nMr. Crane: \u201cWhat is your name ?\nA. \u201cC\u2014\nThe court: \u201cNo; you are not going into that right now; don\u2019t answer.\nMr. Crane: \u201cWell, I will ask him another question. Where do you live?\nA. \u201c5643 North Kedvale avenue.\nQ. \u201cWhat is your business?\nA. \u201cSalesman.\nQ. \u201cBy whom are you employed ?\nA. \u201cI was last employed by the Red Top Metal Company.\n'Q. \u201cHow long were you with them?\nA. \u201cSix months.\nO. \u201cBefore that, what was your business ?\nThe court: \u201cI am not going to let you ask what was his business for the last sixty years.\nMr. Crane: \u201cI am not going back sixty years.\nThe court: \u201cI won\u2019t let you answer that.\nMr. Crane: \u201cWere you, or the immediate members of your family circle of friends, ever the victims of a crime of violence?\nThe court: \u201cI asked that question; I asked that question; don\u2019t repeat. Now, listen, gentlemen. I thought I had made myself clear about it. I do not allow any man in this court room, whether he is the State\u2019s attorney or whether he is attorney for the defense, to ask questions of that kind in the examination of the jury. I regard such matters as unnecessary. It don\u2019t make any difference what happened to others; confine your questions to him.\nMr. Crane: \u201cI asked him if he or his family had ever been the victims of a crime of violence.\nThe court: \u201cI asked them all that, and they said, no.\nMr. Crane: \u201cHave any of your friends or relatives ever been the victim\u2014\nThe court: \u201cI don\u2019t care if any of his friends were ever held up.\u201d\nAfter one of the attorneys for the defendants had asked other jurors a few questions the jury were accepted and sworn. There were no challenges of jurors for cause and only one peremptory challenge was made on behalf of the defendants.\nUnder the law of this State a defendant is guaranteed in every criminal case a trial by a fair and impartial jury, and, to the end that such a jury may be had, the right to peremptory challenges of jurors is given to him. A defendant has a right to examine prospective jurors to ascertain their occupations, habits and associations so far as they might tend to influence them in exercising judgment in the case. He has also the right to make any reasonable and pertinent inquiries to ascertain whether the minds of the prospective jurors are free from bias or prejudice, so as to enable him to exercise his right of peremptory challenge intelligently. (Donovan v. People, 139 Ill. 412; People v. Redola, 300 id. 392.) While a trial judge has a discretion to limit the extent to which attorneys may go in their examination of jurors, he has no right to deny a defendant the right to make all such reasonable inquiries of a juror as may enable him to determine whether or not such juror will be free from bias and prejudice in exercising his judgment in the case and as will enable the defendant to exercise his right of peremptory challenge intelligently. The trial judge in this case unduly restricted the attorneys for the defendants in their examination of the jurors. The defendants in this case were in no way bound by any part of the examination made by the court of the jurors in the criminal case tried before their case was called, as held by the trial judge. When the court stated to the defendants\u2019 attorneys, \u201cI asked that question; I asked that question; don\u2019t repeat;\u201d and when he further stated to the defendants\u2019 counsel, \u201cI asked him if he or his family had ever been the victims of a crime of violence,\u201d the court had reference to the questions that he had asked the jurors in the other criminal case. He allowed no such questions to be asked in this case. The defendants had the right to have a complete record made of the examination of the jurors in this case on their voir dire examination. The fact is they were not in this case permitted to examine the jurors in a manner that would enable them to determine and exercise their right of peremptory challenge.\nIt is suggested by the attorneys for the State that the defendants did not exhaust all the peremptory challenges of jurors that were allowed them under the statute. The answer to this suggestion is, that the court put it entirely out of their power to exercise the right of peremptory challenges by denying their attorneys the right to make any sufficient examination of the jurors, on their voir dire, to properly determine or exercise their right to make peremptory challenges.\nIn the cross-examination of witness Tucker by the attorney for the defendants the following took place:\nMr. Burke: \u201cWhen you say you went to the detective bureau three or four times prior to July 16th\u2014\nThe court: \u201cWere you, Mr. Tucker?\nA. \u201cYes, sir.\nMr. Burke: \u201c \u2014 the purpose of your visits at those times was to attempt to identify suspects ?\nThe court: \u201cHe didn\u2019t say that.\nMr. Burke: \u201cI am asking him, your honor.\nThe court: \u201cYou don\u2019t have to go to jail to identify suspects.\nMr. Burke: \u201cYou looked over them personally?\nThe court: \u201cWhat if he did ?\u201d\nDuring the cross-examination of the witness Bergfelt the following occurred:\nThe witness: \u201cDuring the four times I was at the detective bureau the officers did not show me any pictures or photographs; I did not go into a room with the officers and they showed me pictures; I don\u2019t think I was there Sunday afternoon.\nThe court: \u201cYou went there Sunday afternoon?\nA. \u201cYes; Sunday.\nMr. Burke: \u201cI think I misunderstood you.\nThe court: \u201cYou only think you do. Did the police show you some photographs, do you remember?\nThe witness: \u201cI went down there with Bill Sells, the route inspector; I remember who the other driver was that asked me to go down there and who the police officer was that asked any of the other men to go down there with me to look at the pictures; I don\u2019t know if Mr. Tucker went down there to look at the pictures; the other driver and I looked at the pictures; the other two that I picked out they resembled, and I said \u2014 I explained they were not the fellows; I couldn\u2019t tell you if one that I picked out was George Rabe.\nThe court: \u201cHe said he picked out someone that he said that resembled these same men.\nMr. Burke: \u201cYour honor, I except to the remarks of the court. His words were that the other two that he picked out, one that resembled\u2014\nThe court: \u201cI heard that.\nMr. Burke: \u201cNow, then, did all three of the men decide that this was their picture ?\nMr. Marowitz: \u201cObject, your honor.\nThe court: \u201cNo, no.\u201d\nOne of the character witnesses for DeLordo was the owner of a restaurant. In cross-examining this witness the assistant State\u2019s attorney asked him if he ever met DeLordo outside of the times that he ate in his restaurant, and the trial judge, without giving the witness an opportunity to answer the question, said, \u201cOf course you saw him when he ate there. The only times you saw him was when he was in your restaurant.\u201d\nOne of the character witnesses for Kidd testified that he was a distributor for the Southern Race Track Record and the American Race Track Record, and the following examination of that witness by the court took place:\nThe court: \u201cWhat is the racing record ?\nA. \u201cIt is a record of the racing \u2014 a newspaper\u2014\nQ. \u201cPublished where ?\nA. \u201c25 E. Congress.\n'Q. \u201cThat is to bet on horses ?\nA. \u201cWell, no, but it is about how the races\u2014\nQ. \u201cIt gives information?\nA. \u201cYes, sir.\n'Q. \u201cOf how to win money ?\nA. \u201cIt is just the past performances.\nQ. \u201cUpon which to base your bet?\nA. \u201cYes, sir.\nQ. \u201cAnd always wins?\nA. \u201cFifty-fifty times. (The court laughs.)\u201d\nIn the examination of DeLordo by one of his attorneys the following occurred:\nMr. Crane: \u201cWhere were you taken from the place you were arrested ?\nA. \u201cOver to Blue Island.\nThe court: \u201cWhat difference would that make ?\nMr. Crane: \u201cThey were brought through other cities. The court: \u201cNo, no.\nMr. Crane: \u201cWhere were you taken in Blue Island ?\nThe court: \u201cWhat difference would that make, where they were taken ? I won\u2019t let you ask that in this case.\nMr. Crane: \u201cTo explain the manner in which the identification was made.\nThe court: \u201cNo, no; let this witness testify to facts; that is what the witness has to testify to here.\nMr. Crane: \u201cI am trying to do that.\u201d\nIn the cross-examination of the above witness he testified that he went to Michigan to visit John Brusinslcy, and the following took place:\nMr. Marowitz: \u201cIs he in court now ?\nA. \u201cNo, sir.\nThe court: \u201cWhere is he ?\nA. \u201cI guess he is working.\nThe court: \u201cWhere?\nA. \u201cHe drives a Lincoln truck.\nThe court: \u201cDid you ask him to come, this man that you went to Michigan with, the 10th of July\u2014\nMr. Marowitz: \u201cThe 10th of June, your honor.\nThe court: \u201c \u2014 1929, or was it the 9th?\nA. \u201cThe 9th \u2014 June 9th.\nThe court: \u201cHe is all right.\nMr. Marowitz: \u201cDo you know where he is at the present time ?\nA. \u201cNo, sir.\nThe court: \u201cCan you get him here ?\nA. \u201cI can try.\nThe court: \u201cWell, do you know why he is not here?\nA. \u201cI did not ask him to come.\nThe court: \u201cSir ?\nA. \u201cI did not ask him to come.\nThe court: \u201cYou didn\u2019t ask him to come? Why not? He ought to be here.\u201d\nLater in the cross-examination of this witness by the assistant State\u2019s attorney the following took place:\nMr. Marowitz: \u201cDid you ask anybody to testify in this case for you?\nA. \u201cI didn\u2019t think it would be so bad.\nThe court: \u201cWhat?\nMr. Burke: \u201cI object to that and ask that it be stricken.\nThe court: \u201cOverruled; it may stand; overruled.\nMr. Burke: \u201cException.\u201d\nAfter DeLordo had given his testimony the following occurred:\nThe court: \u201cDo you want more time? Do you want to get some witnesses here to-morrow? If you do \u2014 if you have any other witnesses that you want to produce \u2014 we will adjourn.\nMr. Burke: \u201cI don\u2019t imagine we would have time to get them here from Michigan; they would have to be in court by 10:30 to-morrow.\nMr. Crane: \u201cIt would not give us time by to-morrow to get Brusinsky in.\nThe court: \u201cSir?\nMr. Crane: \u201cI think, your honor, we might try and get Brusinsky in.\nThe court: \u201cHe didn\u2019t want to see him.\u201d\nKidd testified that after he came back to Chicago from the cemetery on the day the robbery took place he went to his home and that his father and sister-were there, and that he stayed at home about forty-five minutes and then went to a drug store and bought a package of cigarettes from Roy Reid, the drug clerk. In the cross-examination of this defendant by the State\u2019s attorney the following took place:\nMr. Marowitz: \u201cIs Reid here?\nA. \u201cWho?\nQ. \u201cReid, the drug clerk.\nA. \"No, sir.\n\u25a0Q. \u201cDid you ask him to come here ?\nA. \u201cNo, sir.\nMr. Marowitz: \u201cIs your father here ?\nA. \u201cNo, sir; my father is sick.\nMr. Burke: \u201cObject, if the court please.\nThe court: \"That is competent.\nMr. Burke: \u201cThe defendant does not have to bring in any witnesses. Exception.\u201d\nThe conduct of the trial judge in the trial of this case in making comments on the evidence, in interrupting the examination of witnesses, in asking questions of witnesses in such manner as to disclose his opinion as to the weight or credibility of their testimony, and in commenting upon the failure of the defendants to produce evidence, was very prejudicial to the defendants and is indefensible. (People v. Wilson, 334 Ill. 412; People v. Rongetti, 331 id. 581.) The action of the court in refusing to allow DeLordo to testify concerning the manner in which the identification of him as one of the robbers was made was erroneous. The main, if not the only, question in the case for the decision of the jury was whether or not the defendants were the men who committed the robbery, and the defendants had the right to show the manner in which they were identified by the witnesses as the robbers and the opportunity of the witnesses to make such identification, so that the jury might determine whether or not there was a likelihood that the witnesses for the People were mistaken on the question of identification. It was error to allow the assistant State\u2019s attorney, over the objection of the defendants, to ask them if they had asked certain persons to testify for them, and it was certainly erroneous and prejudicial to the defendants for the trial judge to comment on their failure to produce evidence. People v. Munday, 280 Ill. 32.\nSince the decision of this court in People v. Bruner, 343 Ill. 146, the rule is that the jurors in a criminal case are judges of the facts, only. It, therefore, was not error for the.court to refuse to allow the attorneys for the defendants to read to the jury from the opinions of this court, as they sought to do. We are also of the opinion that the court did not err in modifying instructions requested by the defendants before giving such instructions to the jury.\nFor the errors of the court above set forth the judgment of the criminal court is reversed and the cause remanded for a new trial. , , , ,\nReversed and remanded.", "type": "majority", "author": "Mr. Justice Duncan" } ], "attorneys": [ "Frank J. Tyrrell, (John M. Lonergan, of counsel,) for plaintiffs in error.", "Oscar E. Carlstrom, Attorney General, John A. Swanson, State\u2019s Attorney, and J. J. Neiger, (Edward E. Wilson, and Grenville Beardsley, of counsel,) for the People." ], "corrections": "", "head_matter": "(No. 21444.\nThe People of the State of Illinois, Defendant in Error, vs. Anthony DeLordo et al. Plaintiffs in Error.\nOpinion filed October 22, 1932.\nFrank J. Tyrrell, (John M. Lonergan, of counsel,) for plaintiffs in error.\nOscar E. Carlstrom, Attorney General, John A. Swanson, State\u2019s Attorney, and J. J. Neiger, (Edward E. Wilson, and Grenville Beardsley, of counsel,) for the People." }, "file_name": "0148-01", "first_page_order": 148, "last_page_order": 162 }