63 N.E.2d 741 | Ill. | 1945
This case is here on writ of error to the criminal court of Cook county to review a judgment of conviction for murder. The case is presented on the common-law record, only.
The indictment contains two counts. The first count charges, in substance, that the defendants unlawfully, feloniously, wilfully and with malice aforethought, struck, beat, hit, bruised, and wounded deceased upon the chin, face, head and body with their hands and fists, and that they pushed and knocked the deceased with their hands and fists, causing him to fall against and strike his head and body upon and against the sidewalk; that the defendants unlawfully, feloniously, wilfully and with malice aforethought struck, beat, kicked, bruised, and wounded the deceased with their hands and fists, and as a result thereof, gave to the deceased divers mortal wounds of which he thereafter died.
The second count charges that the defendants, "did unlawfully, with malice aforethought, by striking, kill and murder" the deceased.
The record shows that plaintiff in error entered a plea of not guilty, waived a jury and was tried before the court on the evidence heard. At the conclusion of the trial, the court found him guilty of murder, and sentenced him to the penitentiary for the term of fourteen years. His two codefendants thereafter entered pleas of guilty to manslaughter and were admitted to probation.
Plaintiff in error contends that inasmuch as the first count of the indictment charged the defendants with committing an assault and battery upon the deceased with their *620 hands and fists, as the result of which he was killed, the use of no deadly weapon being averred, it was only an indictment for manslaughter, and the fact that the pleas of guilty of his codefendants to the crime of manslaughter were accepted by the court, demonstrates that it was error to find him guilty of murder.
Plaintiff in error relies upon People v. Mighell,
While it is true that no presumption of malice will arise from an assault and battery with the hands or fists, alone, still the evidence showing the character of the assault and the circumstances under which it was made may be sufficient to show the element of malice charged in the indictment. Whether the assault was made with malice aforethought and in such manner as to show an intent to take the life of the deceased, was dependent upon the evidence which was before the trial court.
Moreover, the second count of the indictment alleged that the defendants unlawfully killed and murdered the deceased with malice aforethought by striking him. A *621
similar count, in substance, was approved by this court in People
v. Corder,
The judgment of the criminal court of Cook county is affirmed.
Judgment affirmed.