| Ill. | Oct 23, 1907
delivered the opinion of the court:
In his opening address to the jury the State’s attorney made use of the following language: “I infer from the interrogatories asked by the defense touching your competency to sit as jurors in this case, that the defense in this case will be that of self-defense. I now challenge the defendant to take the witness stand and make that defense, for if you do I will put a noose around your neck and hang you.” It is urged that for this reason the judgment should be reversed. Section 426 of chapter 38, Hurd’s Revised Statutes of 1905, provides that the neglect of the defendant to testify shall not create any presumption against him, nor shall the court permit any reference or comment to be made to or upon such neglect. The effect of the remarks of the prosecutor was to impress upon the minds of the jury the fact that the defendant (by which term we designate Edward Clefford) could,1 if he so desired, be sworn and testify in his own behalf. In this case he did not so testify, and the words of the prosecutor above set out were calculated to cause the jurors to dwell upon the defendant’s failure to testify precisely as though some comment upon or reference to that failure had been made after the close of the testimony. The defendant, however, did not object to the statement and was not content to leave- the record in this respect as it had been made by the prosecutor, but in response.to the challenge above set out counsel for the accused, in his opening statement to the jury, said: “I accept your challenge, Mr. Scholes; we admit the killing, and our defense is self-defense.” The statement that the challenge was accepted was an assurance to the jury from counsel for the accused that the latter would testify, and the effect of that statement upon the minds of the jurors, so far as directing their attention to the failure of the defendant to testify, was precisely the same as that of the words used by the representative of the People. Under these circumstances error cannot be insisted upon. The purpose of the statute is not to protect the defendant from his own attorney.
Complaint is made of the action of the court in admitting in evidence the shot-gun which the deceased owned in his lifetime, on the ground that there is no proof that it was used by the defendant in the commission of the crime. The evidence set out in the foregoing statement establishes circumstances tending to show that the defendant killed his father with this identical gun.
Harry Cominsky was called as a witness, and it is claimed by the prosecution that his testimony shows that about one o’clock P. M. on the day of the homicide the defendant made purchases in the Bell clothing- store, in Peoria, and handed the clerk two gold coins in payment. This evidence was objected to on the ground that the witness did not sufficiently identify the accused. In view of the fact that the testimony of Miller and the police clearly and certainly shows that Edward Clefford, after he reached Peoria following the homicide, had several hundred dollars in his possession, we do not think Cominsky’s testimony, even if improperly admitted, could have been harmful to defendant.
It is then urged that no motive for the commission of the crime is shown, and that for this reason the proof does not warrant the verdict. If the jury believe, from the evidence, beyond a reasonable doubt, that the defendant killed the deceased with malice aforethought, it is wholly immaterial what his motive was or whether the evidence indicates the existence of any motive whatever. Farris v. People, 129 Ill. 521" date_filed="1889-06-15" court="Ill." case_name="Farris v. People">129 Ill. 521.
It is finally argued that Frederickson, one of the jurors, was not impartial; that he had prejudged the rights of the defendant, and that for this reason the defendant did not have that fair and impartial trial which he is guaranteed by the laws. In support of the. motion for a new trial there were filed therewith affidavits of William Partridge and Robert Bennett, from which it appears that they were co-employees with Frederickson in the factory of the Avery Manufacturing Company, located in the village of Avery-ville, in Peoria county; that' on or about the 27th day of November, 1906, a little less than two months before the beginning of the trial of this cause in the circuit court, Frederickson, in conversation with Bennett, in the presence of Partridge, at the place of their employment, stated, in substance, that the defendant was guilty and should be hung like a dog, and Partridge alone further states that Frederickson also said that if he (Frederickson) were a member of the jury which tried Clefford, he (Frederickson) would hang him.
On turning to the examination of this juror in regard to his competency we find that he stated, in response to interrogatories propounded by counsel for the defendant, that he had read about the case in the Peoria newspapers, which purported to give the facts; that he had talked with more than one person about the case; that from his reading and conversations he had formed an opinion as to the guilt or innocence of the defendant and that he had expressed that opinion; that at the time of his examination he had an opinion on that question “to a certain extent that nothing had intervened to change the opinion that he first entertained, but that he could give the defendant a fair and impartial trial upon the evidence introduced in court. Upon further interrogation he stated, however, that it would require evidence to remove the opinion which he then had, which was based upon what he had read and heard in regard to the case. In the continuation of his examination by counsel for the defendant this question was asked: “Notwithstanding the fact that you have an opinion as to the guilt or. innocence of the defendant in this case which would require some evidence to remove, you say you could give the defendant a fair and impartial trial?” to which Frederickson answered, “Yes, sir,” and this concluded his examination in reference to the opinion entertained by him and in reference to conversations theretofore had by him.
The examination of this juror discloses the fact that he did not fully comprehend the questions propounded. If his opinion could only be removed by. evidence, then he could not try the case solely upon the evidence introduced in court. The "material question, however, in the situation disclosed by this record, is, did he answer truthfully the questions propounded to him?—-and there seems no ground for concluding that he did not. He testified that he had both formed and expressed an opinion, which he still entertained. Nothing in his examination is inconsistent with the affidavits of Partridge and Bennett. His answers seem to have been entirely frank.. There is no indication that he concealed anything or that he did not correctly state the nature of the views which he then entertained, in so far as he was interrogated. His confusion or his inability to clearly understand the questions asked appears by the examination itself. He was not challenged, either for cause or peremptorily. If it be true that he had prejudged the rights of plaintiff in error and was not a fair and impartial juror these facts were fully disclosed by his examination, and in that respect this case is distinguished from cases relied upon by the defendant, in each of which it appeared that the juror had prejuded the cause and entertained views unfavorable to the party against whom the verdict was thereafter rendered but that this fact was unknown to that party at the time the juror was sworn. As defendant interposed no challenge he is not now in a position to insist that a new trial should have been allowed on account of the prejudice of the juror. If he saw fit to have his case tried by a juror known to him to be prejudiced, a new trial should not be granted on account of the prejudice so entertained by that juror. VanBlaricum v. People, 16 Ill. 364" date_filed="1855-06-15" court="Ill." case_name="Van Blaricum v. People">16 Ill. 364; Stampofski v. Steffens, 79 id. 303.
We are satisfied that the jury were warranted by the evidence in finding the defendant guilty of the crime with which he was charged and that there appears in the record no error of which the accused can avail himself that could have affected the result. The judgment of the circuit court will therefore be affirmed.
The clerk of this court is directed to enter an order of this court fixing the period between nine o’clock A. M. and five o’clock P. M. of the 20th day of December, A. D. 1907, as the time when the original sentence of death entered in the circuit court shall be executed. A certified copy of that order will be furnished by the clerk of this court to the sheriff of Peoria county. , Judgment affirmed.