194 N.E. 223 | Ill. | 1934
Arthur Faught and Morris D. Smith, the plaintiffs in error, were in March, 1934, found guilty by a jury in the circuit court of Vermilion county of the murder of Frank *82 O. Royer. After their motions for a new trial and in arrest of judgment had been overruled they were sentenced to the penitentiary in accordance with the jury verdict, Faught for a term of twenty-five years and Smith for twenty years. A reversal is sought by this writ of error.
Faught and Smith were tried and convicted once before upon this charge. The first trial occurred in May, 1930, and the judgment resulting therefrom was reviewed by this court and the judgment was reversed and the cause remanded. (People v.Faught,
The errors assigned do not require a re-statement of the facts, as they are substantially stated in the former opinion. (People v. Faught, supra.) The defendants argue that the mandate of this court should have been filed within one year, and cite sub-section 3 of section 88 of article 8 of the present Civil Practice act. (Cahill's Stat. 1933, chap. 110, par. 216, subdiv. 3.) Before the Civil Practice act went into effect the Practice act of 1907, in section 114, (Appendix, Cahill's Stat. 1933, chap. 110, par. 114;) provided that if neither party shall file such transcript (mandate) until after two years have elapsed from the making of the final order by this court which reverses any judgment or proceeding the cause shall be considered abandoned and no further action shall be taken. The defendants endeavor to tie the two cited statutory enactments to criminal cases by citing section 13 of division 15 of the Criminal Code, passed in 1933. (Cahill's Stat. 1933, chap. 38, par. 839(1). *83
Neither the brief of the People nor that of the defendants furnishes much aid to us in the solution of this point. No citation of a case bearing upon the application of section 114 of the Practice act of 1907 to criminal cases has been furnished. The Civil Practice act, and the addition to the Criminal Code containing section 13 of division 15 thereof, did not go into effect until January 1, 1934. Until that time section 114 of the Practice act of 1907 was in force. InPeople v. Murphy,
Smith maintains that his conviction was the result of the jury being prejudiced against him and that the evidence does not show him guilty of the crime charged in the indictment. The evidence, in substance, discloses that Smith and Royer had been friends for several years. This friendly status had extended also to the wife of the deceased. Smith wanted five gallons of alcohol for an acquaintance. He went to Royer to procure the same, knowing him to be engaged in illegal liquor traffic. Royer was not a wholesaler of alcohol but offered his services in trying to get that amount. Smith and Faught drove to or past the Royer home five different times that evening, stopping on three occasions to see if they could obtain the alcohol. What reason, if any, Royer had for striking Smith on his fifth visit there the record does not disclose. Royer was armed when he struck Smith. There is evidence that he was not armed when Smith called the first time and that he had only armed himself about two hours before the killing. Royer was a larger man than Smith, physically, and Faught, who came to Smith's assistance with pistol in hand, was about six feet six inches tall and weighed 210 *85 pounds. The fact that Smith and Faught had made so many trips to Royer's house and on two out of the five occasions had been unable to see him personally, indicates that Rover may have armed himself prior to their last visit because he feared personal injury. It was midnight when they came to Royer's house the last time and Royer and several guests were in the "sitting room," with the lights turned off. After Royer had opened the door and knocked Smith down there is no evidence that he pulled his gun out of his pocket or attempted any further violence until Faught came over and shot him. He then shot Faught several times but made no effort to shoot Smith.
The record shows that Royer and Smith had been friends and no reason or circumstance appears to show any feud or trouble between them. Smith was unarmed, and was intoxicated when his last call at Royer's home provoked the latter to assault him. After Royer knocked him down Smith did nothing more serious than to hold Royer's legs and yell for Faught to come to his assistance. The testimony for the People failed to include any proof, on any possible theory, from which Smith could lawfully be found guilty of murder. Under the state of the evidence the trial court erred in not allowing the motion for a directed verdict of not guilty as to Smith at the close of the People's evidence.
We have examined the record with respect to the various errors assigned and find none of them serious enough to warrant a reversal of the case as to Faught. It was not reversible error for the trial court to deny the offer of proof that Royer was a fighting man, as the offer was not made in the proper manner. Nor was it necessary for the People to prove an intent, as we have frequently held that intent to kill does not enter into the definition of murder, and proof of general malice is sufficient. People v. Russell,
Objections are made to different instructions in the argument, but these objections are considered waived under the authority of People v. Bureca,
The evidence fairly tended to support the verdict and judgment as to Faught, and no errors are shown such as would justify a reversal in his case. The judgment is therefore affirmed as to Faught and reversed as to Smith.
Judgment affirmed as to Faught. Judgment reversed as to Smith.