This case, on writ of error from the criminal court of Cook County, is here for review of a judgment on a jury verdict finding the defendant guilty of murder and fixing punishment at death. The common law record and a full transcript of the proceedings are before us.
It is undisputed that about 1 :oo P.M. on February 22, 1954, in the rear room of a tavern called the Corner Liquor
The People presented six material witnesses in this regard. Eddie Towns, a porter at the tavern, said Gottstein was sleeping in the back room and that a waitress asked him to- go back there for some ice. He said that when he went for the ice, the defendant followed him, put a gun on him, said “this is a stick-up,” and in the back room told him to turn around. Then, he said, he heard a couple of blows like someone tapped another on the head; afterward, he heard a shot and somebody fell.
Mattie Cathey, the waitress, said the defendant was in the tavern from about 10:30 A.M. until the incident, that Gottstein waited on him and she served him beer and brought him some cigarettes, and that Gottstein went into the back room to lie down. She said she sent the porter for some ice and went about her business. When he did not return, she went after him, saw the defendant, heard a shot, didn’t know what was going on, and ran.
Neil Wilson, a Chicago Park District police officer, said he saw a crowd at the tavern, stopped the car, went in, got a description of the defendant, and began patrolling the neighborhood. He said he saw him, approached him, and asked him why he had shot the man in the tavern, and that the defendant replied it was because the man shot at him first. The officer said that on being asked his purpose in the tavern, the defendant said he was there to stick up the
Charles Younger, a Chicago police plainclothesman, who went to the tavern about two o’clock after the incident, said the defendant told him he had been in the tavern the night before, had seen the proprietor put some money under the register, and on the day in question “went in there to stick the tavern up, to hold the proprietor up.” He said that the defendant then told of following the porter into the back room and ordering him to waken Gottstein, and further ordering the wakened proprietor to- remain still: “and that the man instead rolled to the floor, and that as he rolled to the floor that he struck him once on the head; the man tried to get up again and he struck him again on the head with his revolver; at that time the man went in his pocket and pulled a gun and fired a shot at him; thereupon he fired two shots at the proprietor.”
All four of these witnesses identified the defendant and the homicide weapon, a Colt .38-caliber police special.
Eugene Precin, a stenotype reporter, and Lester Shapiro, an assistant State’s Attorney, identified a question and answer statement talcen from the defendant at 5 ¡25 the afternoon of the shooting and signed about 11 o’clock the next morning. It was taken in the presence of Younger, Mattie
Cross-examination of Towns, the porter, revealed that he had not prior to the trial told anyone else that the defendant had said “This is a stick-up” at the time of the incident. But on redirect he could not recall that anyone had ever asked him. On the same point, Younger said on cross-examination that he did not remember the defendant’s ever admitting to him that he had told the porter it was a stick-up.
The written statement went into far greater detail than the oral admissions or direct testimony of the two tavern witnesses, but it was corroborative. Cross-examination of Shapiro revealed that he did not formally introduce himself as an assistant State’s Attorney until a point on page four of the statement, that he was quite leading in some of his questions, and that he, rather than the defendant, used for the first time in the transcribed portion of the interview the word “rob.” But it was clear from the whole transcript that Shapiro- did introduce himself at the very outset, and that much of what went into the transcribed portion of the interview was the result of an earlier preliminary oral discussion.
The only defense witness was the defendant himself. His version of the incident was simple and direct. As he put it, he had been in the tavern the night before and bought a beer, giving Gottstein a ten-dollar bill. He said when he counted his change he had only $4.70 and called the matter to Gottstein’s attention. He said Gottstein then snatched the bottle from in front of him and said “You have your
The defendant’s version of the actual shooting is consistent with that of Mattie Cathey and Towns, except that the defendant denies striking Gottstein before Gottstein’s shot, he denies telling Towns “this is a stick-up,” and he says he first pulled the gun when Towns gave him a stiff arm at the door of the back room. In the defendant’s words: “I asked Mr. Towns to turn the light on, and he turned the light on and then I tells him, ‘Wake your boss up’ and he woke him up. After he woke him up, after he woke him up, he raised up and he ups and rolls off on the floor and fires at me. Then in return I fire back at him. Before the firing I did not strike him with the gun, that was just made up. When I fired at him, I was scared. I mean just like a dream or something running down on you, you don’t know what to do. I did not expect him to shoot at me when I went back there. I did not go back there to hold him up. I fired twice. After I fired twice, I stood up for awhile and then I told Mr. Towns ‘You better call the police or an ambulance quick.’ Then I ran out.”
As to the oral admissions and written statement to the effect that he had gone to the place to rob Gottstein, that he had struck Gottstein over the head twice before any shooting took place, and certain other incriminating details, the defendant testified that at the police station “everybody had automatically got it in their head that I was there to stick the man up.” He said he had never told anyone he had gone to1 the place for a holdup, and he said regarding his admissions of striking Gottstein over the head that he was lying and the stories were “made up” or “fiction.”
The defendant argues that the testimony of Towns is unsatisfactory because it includes the statement that the defendant said “This is a stick-up,” although Towns did not tell anyone, not even the investigating authorities, about any such declaration by the defendant. But the fact Towns told no one before the trial about the defendant’s declaration does not prove that the defendant did not make it. For it is equally clear nobody asked Towns about it, and the facts that Towns did relate are all consistent with such a declaration. Moreover, the defendant admitted substantially the same thing to both Wilson and Younger within an hour after the killing.
The defendant argues that Mrs. Cathey’s testimony cannot be relied on because she said on direct she did go into the back of the tavern and said on cross-examination she did not, and she said Gottstein had served the defendant about ten o’clock, while Towns indicated Gottstein was not in the front of the tavern from seven o’clock on. But these were minutiae which did not discredit the witness. Who was where in a busy tavern, with some 18 customers present, even where the boss was, and particularly who served whom during three or four hours prior to an incident which in retrospect dwarfs all others are not significant details. They would likely be neither observed nor recalled with precision. They are immaterial here. Likewise, whether she went back into the rear room, went to the back “part” of the tavern or started back when she heard the shots is not material. The defendant admitted before trial and testified
The defendant goes to great length in an effort to show that the assistant State’s Attorney led the defendant into making certain statements about the incident, calling him “a master craftsman” who substituted his own opinions and conclusions for statements of the defendant. Some of his questions were leading. But we cannot say that the leading questions were designed to put words in the defendant’s mouth, to distort the truth, or do anything other than clarify the defendant’s intentions which were otherwise rather unarticulated.
The result certainly was not to mislead the defendant, for he answered some important questions with direct “yes,” others with “no,” still others with modifying explanations, and on certain key points, did not follow but refuted the examiner. For instance, asked if it were not correct that he had been carrying a gun right along, he said “no.” Asked when he got the idea to rob the place, he answered “well, when I seen that big bale of money he had.” Asked why he waited from 10:30 until 1 :oo before he tried to hold up the place, he answered “well, I had my chance, you know, when I could get by without anybody seeing me.” Asked if he were pointing the gun at the porter, he answered “no.” Asked if he had it in his hand, he said “yes.” Asked if he had it pointed at the deceased, he said “well, yes, but I mean, I didn’t have my hand on the trigger, no.” Such answers indicate not a pliable subject in the hands of a corrupt and corrupting craftsman, but a witness at least alert to the implications of the questions and free and vocal enough to give discriminating answers.
On two key points, he volunteered answers either outside
As to why he went into the tavern, he summarized succinctly without any leading questions: “Q. And your reason for entering this tavern was what? A. To get some money. Q. By what method? A. What do you mean? Q. In what manner ? A. Well, I thought I could just show my gun and get some.” On questions and answers of this character, we cannot say that the defendant was led into any statements he did not mean to make, perverted into acquiescing in any assumptions of the examiner, or induced to distort the truth as to physical facts or as to his own intentions.
His own version and theory of self-defense is contained in the statement in these words: “Q. Well, didn’t you say to him it was a stick-up or words to that effect? A. No, before I could say anything, he pulls his pistol and shoots at me'. And then in return, I shot back. Because it scared me, you know.” Following this report, the examiner made no attempt to destroy the defendant’s flat denial of any “stick-up” declaration.
It would serve no useful purpose to recount here the full details of the lengthy question and answer statement. It should be made clear, however, that we have examined it in close detail, and find that no unfair advantage of the defendant was taken and that there is nothing involuntary, coerced, or distortive about it.
While it is not a full confession of a shooting in the course of an armed robbery expressly intended, it contains numerous admissions corroborative of the oral admissions given to the two officers.
On perhaps the most crucial point in the whole case—
Assuming for purposes of discussion that the defendant went to the tavern to collect $5 he claims to- have been shortchanged, he had no right to do so at the point of a gun. He had no' right to go from the public portion of the tavern to the keeper’s private rear room, nor to menace the man’s porter on the way. Yet he trespassed into the private room, forced the porter to waken his boss, and pointed a loaded gun at the sleepy man. The defendant was the aggressor. If the deceased rolled off the cot and went for a gun, it was not until he had been struck severe blows on the top and rear of the head by the gun in the defendant’s hand. And in such circumstances, the defendant’s final fatal act cannot be excused as self-defense when he himself had brought on the action of the deceased.
This is settled law. When a person has sought and brought on the difficulty he cannot invoke the law of self-defense unless he has in good faith declined further struggle. Stanton, Illinois Criminal Law & Practice, sec. 1884, citing ten Illinois cases from Adams v. People,
His denial that he struck the deceased when the sleepy man “raised up” — before any shooting at all is inconsistent with his own statements to Shapiro and at the inquest which he later says were lies, “made up,” or “fiction.” He explains his inconsistent inquest statement as made when he was “afraid,” but he does not explain the alleged lie to Shapiro. His denial also flies in the face of the cuts on the top and rear of the deceased’s head. And on this crucial point, the
It is of course our duty to resolve all facts and circumstances in evidence on the theory of innocence rather than guilt, if that reasonably may be done, and where the entire record leaves us with any grave or substantial doubt of guilt, we must reverse. {People v. Sheppard,
The defendant’s denials which, if believed, might be considered consistent with his self-defense theories create, at best, a conflict in the evidence. But a conflict in the evidence does not of itself establish a reasonable doubt, and a jury verdict based on credible and substantial evidence is not rendered reversible by the fact that there was other evidence in the case which might, if believed, have resulted in a different verdict. People v. Martin,
We next discuss the instructions, which we have considered as a series and with regard to the individual rulings complained of as error.
The defendant objects to an instruction which advised the jury that if they find, after considering all the evidence, that any witness testifying on behalf of either side wilfully and corruptly testified falsely to any fact material to the issue in the case, they have the right to disregard the testimony of such witness, except in so far as corroborated by other credible evidence. It is urged that this instruction leaves undefined the facts material to the issue, and the giving of it constituted reversible error. However, other instructions fully covered what the material issues were, and the instruction was therefore proper. People v. Skelly,
Four of the State’s instructions are complained of for
The defendant complains of an instruction which told the jury that the intent alleged in the indictment had to be shown, claiming that the indictment alleged no intent and for murder it is sufficient to prove general malice as distinguished from specific intent. This instruction could not have prejudiced the defendant, but, if anything, was likely to inure to his benefit. See People v. Guido,
Also criticized is an instruction defining malice as including “not only anger, hatred and revenge, but every other unlawful and unjustifiable motive” The instruction is vague in that “other unlawful and unjustifiable motive [s] ” are left undefined, but it has been approved by this court. (McCoy v. People,
Finally, the defendant complains of an instruction which stated that if the defendant entered the place to rob it and pointed a revolver at the deceased, and some other person
On the whole, we believe the series of instructions fairly stated the issues and the law and provided a fair and complete guide for the jury. If the series of instructions taken together satisfactorily serve this purpose, without prejudice to the defendant, inaccuracy or erroneous or misleading matter which is not harmful provides no ground for reversal. (People v. Wilson,
The defendant’s contentions regarding improper admission of evidence and regarding a death penalty resulting from prejudicial passion are not argued, and are considered waived.
The final contention is that the trial court erred in denying a motion for new trial based on the fact that one petit juror was the wife of a man who was on the grand jury which returned the indictment. The defendant contends that, we must conclude from a hearing on the matter that she suspected this when selected as a juror and became convinced of it after evidence began coming in; that she deliberately secreted from the trial court the fact her husband had been on the grand jury; that she knew some or all the facts without getting them from the trial witnesses;
In these circumstances, the defendant’s point amounts to a bare assertion that a petit juror related to a grand juror has, as a matter of law, not only knowledge of the cases considered by that grand jury, but preconceived convictions regarding guilt or innocence as to indictments voted by it. Inferences, in our opinion, cannot be carried this far. And cases calling for new trial where a juror has an opinion, prejudice, or partiality, either express or implied from circumstances or from deception regarding the matter, do not apply.
Where there is no such opinion, or the opinion is removable or an opinion which is not fixed, the juror is not disqualified. (Leach v. People,
On a careful review of the whole record, we believe the defendant had a fair trial, and that the jury verdict was fully justified by evidence which warranted belief and which, if believed, proved the defendant guilty beyond a
As discussed above, the fact that the defendant did not fire the first shot makes him no less the original aggressor, and in the circumstances no less guilty as a matter of law.
The judgment of the criminal court of Cook County is affirmed, and the clerk of this court is directed to enter an order fixing October 5, 1956, as the date on which the original sentence entered in the criminal court of Cook County shall be executed. A certified copy of the order shall be furnished by the clerk of this court to the sheriff of Cook County.
Judgment affirmed.