*1 observed that the Ill.2d to be 586.)” Additionally, in the in petitioner, waived defects plea guilty, formation which were not nature and hence jurisdictional Reed, did not render the information v. void. People Jackson, Ill.2d v. see 535, 538-9; People 475; People 2 Ill.2d Temple, 276. of the circuit court of
Accordingly, judgment Wayne County for habeas corpus dismissing petition is affirmed.
Judgment affirmed. (No. 39658. vs. Appellee, Illinois, State Murdock, Appellant.
James Opinion May filed *2 Ward, part. J., took no Schaefer, J., concurring. M. Car-
Howard T. Chicago, Savage, (Joseph and Shelvin counsel,) appointed by Singer, rabotta court, for appellant. General, of Attorney Springfield, G. Clark, William of Chicago, (Fred State’s Attorney, and Stamos, J. John General, G. Leach, Assistant C. Attorney Kis- Elmer and William Assistant Attorneys, State’s sane Nellis, J. for the counsel,) People. Solfisburg Mr. Chief delivered the opinion Justice of the court: a trial in the circuit court of Cook Following jury defendant, Murdock, County was found guilty James murder, He was sentenced to con- rape burglary. current terms of for not less than nor imprisonment more than years rape burglary charges. jury recommended the death on the murder charge penalty and he was sentenced to death. appeals directly Defendant to this court.
The record that in shows afternoon of May early found the neighbor of Mrs. Alvina Godlewski in bed in the behind her school living quarters supply *3 goods store. There was sporting testimony that markings on her indicated that she had been manually strangled. The aof findings were that she had pathologist recently engaged sexual intercourse and was at intoxicated time of her death. The defendant’s found were fingerprints on a storm window that had been from a removed bedroom window of the deceased’s first floor Twelve apartment. days after the crime was committed the defendant surrendered himself after from his brother that learning he was wanted by He at first police. denied in the deceased’s store being or but, at time living quarters any when confronted with the fact that his window, were on the storm fingerprints signed a statement typewritten that he had entered the admitting room window and taken through open from the $3 cash and from a register, No purse. $10 attorney for the defendant at this present interrogation.
A coroner’s was held three inquest after days the de- fendant had surrendered himself. He was taken to in- this and advised the coroner that quest he didn’t have to “if so, testify, do do he wished to and testify you unless accord, must be own without free will your or full well immunity, knowing reward promise for or here be used either you anything say today may After future hearing hearing.” at this or some you against and ad- testified so admonished the defendant having living quarters mitted that he had entered the deceased’s denied, however, he had and had taken He money. her no time murdered her. At raped during was the he to right repre- defendant advised that had sented by counsel. all three charges. to defendant not guilty pleaded he
Prior to trial he moved to both s.atements suppress himself at the station after gave surrendering police his on the at the coroner’s inquest ground counsel when he neither were made was represented as- further nor advised He of his be so right represented. station, serted his during interrogation statement, in the he was not advised resulted was denied remain silent. His motion to suppress and both the statement and the into trial received were offered the State during trial a new evidence. After the verdict moved for this On same which motion was denied. grounds, he also renews these contentions and asserts numer- appeal ous other for reversal. grounds
We are confronted here pre with a post-Escobedo Miranda trial. The restriction of Miranda to prospective was announced in v. New Jersey, Johnson operation and conse L. Ed. 2d this the time of trial our decision quently *4 the to counsel in right Ill.2d Hartgraves, 375, governed In we pre-indictment Hartgraves investigations. noted that fact defendant was not affirmatively the that that his confession be used him does against warned might in not and of itself render a confession Rely- incompetent. Washington, v. State ing upon Haynes of failure Ed. we held that 10 L. 2d S. Ct. 513, 83 to remain to warn the him of his right advise the accused silent was an “which attendant circumstance in determining entitled to have considered appropriately (31 his confession.” voluntariness and of admissibility Ill. that an other 2d held in Hartgraves further 380.) We be wise be rejected solely confession would not voluntary cause the caution the accused affirmatively State did not of his to have an After right reviewing attorney present. evidence on are the defendant’s motion to we suppress, the trial that court found opinion properly statements the defendant at the station were by given police voluntary.
A further the defendant reference by with point urged statements station is that since first of these statements denied of the crimes knowledge committed in the deceased’s it should not have premises, been admitted' since it had no substantive or independent testimonial value. We In his statement disagree. subsequent the defendant admitted committed the having We burglary. are of the false state- prior contradictory an ments accused are admissible evidence. Defendant’s argument his at the coro ner’s should have inquest suppressed ground he not counsel is represented likewise without In merit. he cites position section support 17.1 Act (Ill. Coroners Rev. Stat. 1963, chap. par. 18.1) that' witness provides “any appearing shall have the to be right represented by counsel.” This pro vision, enacted has never been construed to give counsel, witness free even indigent such though then witness was suspected decedent. murdering Defendant’s contention was discussed the court recently v. Musil (1967), There held we at a coroner’s testimony given be used may *5 558 in a the accused subsequent proceeding,
against counsel, are certain lack of so as requirements long despite Jackson, set forth in v. These met. requirements, that the call for affirmative 263, showing proof 23 that refuse testify; of his to to accused was advised could used against statements be he was advised that waived him; and knowingly intelligently that he believe We self-incrimination. against constitutional right the admonishment these were met by requirements coroner. to given that, our decision are not unmindful following We v. Musil, Rhay, States Court Mempa the United Supreme 128, 2d S. Ct. ruled U.S. L. Ed. 336, 254, 88 19 389 in Gideon U.S. Wainwright, holding 2d conclusion L. Ed. compels at for an is every of counsel indigent “appointment required substantial of a criminal where rights stage proceeding criminal accused be affected.” may (389 a at involved 2d at The particular proceeding L. Ed. 340.) sentence, for purpose imposing Mempa no not can be and was a coroner’s While there inquest. of a is a of a criminal doubt sentence “stage imposition this in are to extend to we unwilling concept proceeding” with clude a coroner’s which is concerned inquest, primarily death, cause of even when a witness testifying On the decedent. may suspected murdering a a basis that coroner’s is not of a criminal “stage in we conclude that the decision in Mempa proceeding,” to the situation before us. no error Consequently, applicable the trial court’s refusal de was committed to suppress fendant’s coroner’s inquest. next defendant’s contention he was
We consider as a failure denied due process prosecution’s result to disclose evidence which was favorable and material the defense. the trial it was disclosed that Subsequent officers had Ann interviewed Panek and made Mary police took a Attorney and thereafter an State’s assistant report report Both the sworn Miss Panek. statement from that 15-year-old and the sworn were to the effect statement store Ann deceased woman’s Panek had entered the Mary unlocked front door through approximately 12:3o rear P.M. She walked day was found. and, on the of the store no one hearing seeing the ex- left the same The State admits premises, door. *6 of existence istence this further admits its statement and It at- was to defense counsel. not revealed intentionally disclose, the on to excuse this failure to tempts facts in that material to the the statement was not ground was this case. The reveals that the deceased woman record last seen 10:00 on May alive at P.M. approximately 2:00 Her discovered the at day was body following 1964. the ground who observed P.M. neighbor through The floor window deceased’s apartment. open found, 2at to their testi- arrived P.M. according :og trial, in front of that both the double doors mony rear and the from the the deceased’s store door leading locked. It further ascertained that her were was apartment or with a the front doors could be locked unlocked only and that the rear door been locked from the inside had key in other key keyhole. only the the remaining with the means of was ingress premises through egress bedroom. window the facts, with the facts that the defendant These coupled the bedroom the window by way admitted entering the defendant’s deceased’s and only fingerprints window, on the found supported prosecution’s were could have committed the the defendant theory only and murder. rape adduced
It should be noted medical that the deceased woman had engaged the trial indicated to her There was also in intercourse death. evidence prior It she was intoxicated. was defendant’s theory 560 in intercourse
trial some unknown had engaged person the arrival of with the deceased before strangled this com defendant. The theory ridiculed prosecution locked the locked doors menting doors. Since such a in the evidence role circumstantial played key against defendant, evidence that the door was unlocked front at some time the deceased’s discovery prior could or immaterial to hardly considered irrelevant evidence, fact, reconstruction of the crime. Such would had be consistent claim that a third with defendant’s party sexual intercourse and present engage strangle the deceased after arrived before the defendant scene. It is our that Miss Panek’s was material to the defense and that was denied due as a result failure to disclose process prosecution’s the existence of her statement. v. Hoffman, 32 Giles 96; L. Ed. 2d U.S. Maryland, 737, 87 Pate, S. Ct. L. 793; Miller v. Ed. 2d As we have noted earlier in the defendant this opinion and, trial, with after a charged was found guilty single three distinct crimes: and murder. He was burglary, rape *7 sentenced to years on the burglary rape and was In charges sentenced to death the murder. view for that the to due defendant’s was our'finding process violated, it is our and sentences opinion judgments to each relating of these crimes be re- should reversed and manded for a new trial. determined
Having that the entire cause must re- manded we now consider those issues raised defend- ant which could foreseeably recur at a trial. subsequent
Over objection defendant’s the trial court admitted into evidence two of the deceased woman photographs which were taken apparently after her shortly was dis- covered. In death, view of the course, nature her are admittedly pictures gruesome and defendant contends reversible constituted that their introduction into evidence fact or any value error since have no upon probative in solely prejudice issue the case and were introduced of the that one photo- and inflame the He also jury. charges in of the testi- reviewed light was when graphs “posed” of the witnesses. mony prosecution’s of the photo- are of the that the admission We opinion law, said, to have been matter of cannot be as a graphs The judge, of the trial judge. abuse of discretion on the part held that defendant’s objections overruling specifically nature in which “on the have photographs bearing “nature in the sexual the death occurred” and the corroborate act took the manner in which they place this defend- the statement made under oath by disprove ant as to the found the Our body.” manner in which he and, in examination of the this view record supports were absence of evidence that the posed, photographs conclude that their into did not con- admission evidence stitute reversible error. of the coroner’s is also made to the
Objection testimony which he detailed the sustained injuries pathologist the deceased. Such detailed to the de- testimony, according fendant, was to the unnecessary pathologist’s the deceased had manual died asphyxiation by strangula- first tion. We note no to this objection was made the trial and further that of the testimony portions condition were relating physical corpse result of defendant’s cross-examination. further feel We that the in that it pathologist proper with the facts which his final provided jury opin- ion was predicated.
Defendant next that he was charges prejudiced by fact that of himself were introduced into evi- photographs dence He contends these prosecution. photo- communicated the defendant’s graphs previous *8 to the and were irrelevant to issues history jury totally in the case. We agree front and views profile defendant in the to well photographs might very suggest jury were files they shots taken for “mug” and, since there was no for their admis- probative purpose evidence, sion into find that the errone- were photographs admitted. ously We need consider or not such not whether evidence alone would be so as to a new prejudicial require trial.
Defendant calls our attention certain comments made the court by and the which he contends were prosecutor to him. prejudicial He of the com- specifically complains ments made the court after the coroner’s pathologist testified with to the regard that the intercourse possibility which the death, decedent had to her was engaged prior performed with her consent. We agree judge’s comment that “it is view that the my far very afield” was prejudicial defendant and completely uncalled for. We trust that both the court and the State will take to see that precautions no such statements prejudicial occur in a future trial. received jury 22 instructions at the close of the
evidence, had been submitted the defendant. however, He complains, of the many instructions sub- mitted himby were refused the court on the ground were they merely repetitious the State’s instructions when, fact, were not. We that under our recognize each jury system criminal, side to a be it dispute, civil or to have attempts submitted to the those jury instructions which are most likely favor their theory case. We that, further recognize cases, in criminal particularly one instruction can to be appear similar to an- substantially other when fact the addition or deletion of a word key in one can phrase alter it suddenly from the other. Be- cause of the initial appearance similarity, we with the agree defendant that the whose party instruction is considered first on a often particular point has the ad- *9 are side, instructions unless both the other over vantage nuance. in phrasing examined for differences carefully in a criminal necessary is Such an examination particularly instructions which party’s case. we do not suggest While the court consideratioñ, caution we first should be given instruc- therefore, each to inspect in criminal proceedings, the other refusing one and before tion carefully tendering mere be that neither side may prejudiced order last. instruction was considered fact that his submitted those instructions reference to With State, them have disapproved find that several of we not be used and trust will they this court in cases of by prior admonition, cause. This same in a trial of this subsequent course, instructions the State is extended to those of admits are instruction notably improper, other in his raises numerous
While defendant points unlikely merit or are either without brief we find circuit court in a future trial. The decision of the to arise and the cause remanded for of Cook is reversed County in this trial in accordance the views new with expressed opinion.
Reversed and remanded. consideration or took no part Mr. Ward Justice decision of this case.
Mr. concurring: Schaefer, Justice must reversed because I that the convictions agree an wit- concealed the identity important prosecutor ness, but I do not that the agree in evidence. admitted at the coroner’s inquest properly admission of this The sustains the majority a “crimi- it is to extend” concept because “unwilling char- include a coroner’s nal inquest. proceeding” a criminal as a of a coroner’s inquest stage acterization not, act of will does depend upon proceeding court, rather members of this but the part the incidents and A coroner’s attributes of such an inquest. is a of some kind and proceeding certainly not a civil this court Peoria As said in proceeding. Cordage Board, Co. v. Industrial “If the Ill. coroner 96: had information which in the of his discretion exercise act, authorized him to to an was limited authority into the facts and inquiry securing physical obtaining evidence for the apprehension prosecution any per son in the commission of a crime. In no implicated case would the verdict be admissible for the of fixing purpose civil liability.”
Moreover, this Lyons Ill. People, 616-7, *10 court a as characterized coroner’s a crimi squarely inquest nal “The defendant not proceeding. obliged appear as a witness take oath before the coroner’s nor jury, to answer would criminate His any question himself. act in there was Our statute testifying voluntary. provides that ‘no shall be as witness in person disqualified a criminal case reason his or interest in the proceeding event of the a same as or otherwise.’ (Crim. Code party Rev. Stat. Starr 38, 426; sec. & Cur. sec. chap. 486, page held, that, It 863). has been under a like statute this where a on his own behalf in all prisoner may testify desires, if he proceedings taken under oath testimony examination, at the if it to have preliminary been appears without freely given, admissible compulsion promise, as a confession. v. 1 (People Kelly, 125; Cal. Greenl. 47 ed.—sec. note Whart. Crim. (a); Ev.—14th 225 Ev. Jackson, sec. also supra).” (See v. Ill.2d 669 23 266; 102, Co., v. 263, Knickerbocker Ice Novitsky Ill. 276 Other courts have characterized 105.) similarly coroner’s as criminal See Acker v. inquests proceedings. Anderson Allison, S.C. S.E. County, 478, 337; State v. 77 58 116 P.2d 352, Mont. 153 141.
To sustain the of the defendant’s admissibility relies majority v. entirely upon People
565 held that the testi Musil where we (1967), 373, 37 of an accused not counsel who was mony represented a held in could be used to coroner’s inquest impeach 1959 trial, held he at his which was gave case, January But the issues in that were decided i960. on the basis of “our rules as then existed. Pursuant thereto failure to ‘any advise the of his con stitutional and the failure to him with coun rights provide sel are attendant circumstances whether only deciding his confession was ”. Ill.2d at Our voluntary’ 377-78.) (37 in that concern case thus centered whether the absence iipon of counsel at the meant that necessarily the defend ant’s confession was involuntary.
In November after our decision the Musil 1967, case, the Supreme Court of the United States decided 128, v. L. Ed. Mempa Rhay, U.S. 2d S. Ct. 336, 88 389 19 That case involved defendant "to coun- sel at the time of where the sentencing has sentencing deferred subject to probation.” U.S. L. Ed. (389 130, 19 2d at In its 338.) the court discussed its decisions in Townsend v. Burke U.S. (1948), L. Ed. 736, 334 S. 1690, 68 Ct. Moore v. 1252, Michigan (1957), U.S. 2 L. Ed. 2d 167, Hamilton Alabama Ed. (1961), 52, L. 2d 82 S. Ct.
also referred to its decisions in Reece v. Georgia (1955), *11 U.S. 100 L. Ed. 85, 77, S. Ct. 167, White 350 76 Maryland (1963), U.S. 10 L. Ed. 59, 2d 193, S. Ct. 373 83 The opinion continued: 1050.
“All cases, the White, with the foregoing exception were decided the of Betts v. during reign Brady, U.S. 316 L. 86 Ed. 455, 1595, 62 S. Ct. (1942), accord 1252 relied ingly various ‘special circumstances’ to make the to counsel right In applicable. Gideon v. Wainwright, 372
U.S. L. Ed. 2d S. Ct. 792, 2d A.L.R. 335. 9 799. 83 93 733 (1963), Betts was overruled and this Court held the Sixth as Amendment applied the through Due
566 was appli- Fourteenth Amendment
Process Clause of the an and, there was cable to the States accordingly, cases. in felony of counsel absolute to right appointment to enumerate “There was no Gideon occasion counsel in a at which various stages proceeding Hamilton, Townsend, Moore, when was but required, is circumstances stripped the Betts of special requirement Gideon, stand for the away clearly proposition every at for indigent of counsel required appointment of a criminal where substantial stage rights proceeding at be 134; a criminal accused affected.” U.S. may at L. Ed. 2d right amendment makes clear that sixth
Mempa of this and that to counsel is directly applicable disposition was a inquest case must turn whether coroner’s upon at substantial rights which the stage of proceeding The record leaves have been affected. could defendant to At a time when as the answer that question. no doubt to murder, the defendant- alone was he suspected a formal called to testify purpose proceeding, * * * the said to determine whom “by of which was * * to *.” Rev. Stat. 1963, dead came its death (111. statute,.as amended chap. par. 15.) governing 31, shall witness appearing 1959, “Any provided: Stat. counsel.” Rev. (Ill. have the represented right statute the de 31, 18.1.) chap. par. Despite States, Court the United par cisions of the Supreme (1963), v. Maryland White ticularly ad was not L. Ed. 2d counsel, can and he be represented vised of have that right. said to waived not be reasons, admission my For these was errone- the coroner’s defendant’s testimony ous.