100 Ill. App. 130 | Ill. App. Ct. | 1902
delivered the opinion of the court.
First, it is claimed that the court should have required the State to elect. We think not. Baker v. People, 105 Ill. 452-6, and Farris v. People, 129 Ill. 521-31.
If there was any error in this regard, we think it was obviated by the direction of the court, at the close of the evidence, to find Romano not guilty. The fact that evidence of a distinct crime by Romano remained before the jury, in which Gorgo was not implicated, in no way prejudiced the latter. The evidence as to the assault by Romano upon the prosecuting witness was proper, because it was closely connected in time and place with the alleged assault by Gorgo, and tended to show motive on the part of the defendant. His son, Joe Gorgo, had just been quarreling with Higro, the prosecuting witness.
- It is also said that the court erred in not permitting the State’s witness, Bonnelli, to answer the following question on cross-examination, viz.:
“ Q. Then didn’t you say to me when I told you that we would do no such thing, when I spoke to Mr. Gorgo first, and we said that we would proceed with it, didn’t you then say that you would take $200 and Frank ATigro would not prosecute the case?”
The witness had just answered that he told Joe Gorgo’s younger brother, if he paid $300, Frank Higro would not prosecute. We think the interest of the witness had thus already been sufficiently shown, and that was all that is claimed by counsel was the purpose of the question.
There is a conflict in the evidence as to whether plaintiff in error committed the assault of which he was found guilty, with felonious intent or in self-defense. That he did cut the prosecuting witness with a knife, is clearly established, but the defendant says, “I saw him (the prosecuting witness) coming to give me a blow, and he took a revolver out of his pocket. He is a younger man; and all the other men in the place ran out and he took my head and nearly choked me. * * * He was on top of me and I soaked him with the knife. I struck him with the knife, because he wanted to shoot me.” Frank Higro, the prosecuting witness, does not deny that he had a revolver, nor that he took one out of his pocket. Ho other witness except Tyco testifies on the point. He said that he didn’t see Higro get hold of something before he was struck. Several of the witnesses testify, including Higro himself, that the latter was on top of Gorgo at the time Higro was cut with the knife. A number of witnesses testify that Vito Gorgo’s general reputation as a peaceable and law-abiding citizen was good.
In view of this evidence we are of opinion that it was error to refuse the defendant’s instruction Ho. 10, quoted in the statement, and especially in view of the fact that-the court gave at the request of the State, instruction Ho. 14, also quoted. Instruction Ho. 14 calls especial attention to the testimony of the accused and his interest in the result of the prosecution as bearing upon his credibility. Ho other instruction was given to the jury as to the credibility of any of the other witnesses in the case, although it appears that at least one witness, Bonnelli, besides the prosecutor, was interested in the result of the prosecution. We think that, only the State’s instruction on this point having been given, the jury was liable to have been misled into the belief that they were to consider the defendant’s liability alone, to the exclusion of other interested witnesses.
We are inclined to the opinion that the court did not err in refusing defendant’s 11th instruction, quoted in the statement. Instruction 8, given on his behalf, which is quoted in the statement, as well as other instruction given, instructs the jury as to reasonable doubt quite fully. In Ochs v. People, 124 111. 399-429, it was held no error to refuse an instruction “as to reasonable doubt, invoking its application with respect to particular facts in a case, instead of to the question of guilt upon the whole case, or some entire matter of defense or element of the crime.” In Weaver v. People, 132 Ill. 536-42, the court say:
“ The reasonable doubt the jury is permitted to entertain must be as to the guilt of the accused on the whole' of the evidence, and not to anvparticular fact in the case.”
If, however, the instruction is not faulty in this respect, we think it was properly refused because of the use of the word inconsistent instead of irreconcilable. Although some fact might be shown which is inconsistent with guilt, there may, notwithstanding, be other evidence which may fully establish guilt to the entire satisfaction of the jury.
Complaint is made of a remark of the court in regard to certain proof that would thereafter be made by the prosecution. Inasmuch as error, if any, in this regard may be avoided on another trial, it seems unnecessary to pass upon the question.
For the errors indicated as to the refused instructions, the judgment is reversed and the cause remanded.