Crowell v. People
| Decision Date | 19 June 1901 |
| Citation | 60 N.E. 872,190 Ill. 508 |
| Parties | CROWELL v. PEOPLE. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to circuit court, Williamson county; A. K. Vickers, Judge.
William Crowell was convicted of assault with intent to commit murder, and he brings error. Affirmed.
Duncan & Denison, for plaintiff in error.
H. J. Hamlin, Atty. Gen., and R. R. Fowler, State's Atty., for the people.
Plaintiff in error, William Crowell, was indicted for an assault with intent to murder Thomas E. Lowery, and upon a trial was found guilty and sentenced to confinement in the penitentiary.
One of the grounds upon which a reversal of the judgment is asked is that the trial court erred in not granting a new trial because the verdict was against the evidence. The facts established by the evidence are, in substance, as follows: On April 14, 1900, Crowell and James Coontz were returning home from Creal Springs, in Williamson county, riding in Coontz's wagon. Coontz was driving his team of horses, and they met Thomas E. Lowery and his hired man, Burt Barnett, who were going east on the same road, each driving a mule team with a load of railroad ties. Lowery owned the mule teams, and Burt Barnett worked for him. Lowery's team was in front, and as they came down a hill they met Coontz's team near the foot of the hill. The horses stopped with their heads about even with the heads of the first mule team; and the hind wheelsofthat wagon, which was driven by Lowery, were near to or resting on a culvert, with the team driven by Barnett just behind it. Lowery had been informed that Crowell had told some scandalous tales about Lowery's wife and Barnett, and he had told Barnett that morning, after Barnett denied telling them, that it lay between Crowell and him; that one or the other of them had lied, and whichever one it was had to take a whipping. They expected to meet Crowell on the road coming west from Creal Springs, and Lowery said he would find out which one told the lie. When they met, Barnett requested that he be permitted to speak to Crowell first about the reports, and went forward and did so. Crowell got off the wagon, and stepped forward to a point about even with the heads of the horses, and on the north side of the road. He denied that he had made any statement except what Barnett had told him, and accused Barnett of making the statements. Barnett said he guessed he had storied, and told Lowery that Crowell denied telling the lie, and asked if that was satisfactory. Lowery was sitting on his wagon, and replied ‘Yes,’ but that Crowell had circulated a report of his stealing ties, and accused him of lying about that. Crowell drew his revolver, and Lowery jumped off his wagon, taking what is called a ‘brake pole,’-a stick of green persimmon wood about four feet long. He jumped off on the opposite side from Crowell, and went to the heads of the mule team. Crowell aimed at Lowery and snapped the revolver, but it did not go off. Lowery then went along on the south side of Coontz's wagon, and Crowell, on the opposite side, stooped down or squatted, and aimed the pistol at him under the wagon. Lowery climbed on the wagon and sat down by Coontz, who was telling Crowell not to shoot. Crowell stood in front of the team with the revolver, flourishing it, and the parties quarreled five or ten minutes. Lowery offered to give the club to Crowell and fight him without arms, but Crowell refused, and said he would shoot him if he offered to strike him. Finally Coontz persuaded Crowell to start on home, and Lowery got off of Coontz's wagon and went back along the south side of the wagon to the west end of his wagon. Coontz started to drive around the mule teams in the airection of Crowell, who was west of them, and daring Lowery to approach any nearer, and telling him if he came across a small branch there he would shoot him. Lowery said that he did not want to die bad enough to go across the branch, but would go to the end of his wagon, if he wanted. Crowell told him to go to the end of it, but not to go past the end of the wagon. Lowery told Crowell he was a coward, and his old pistol was rusty and would not shoot. After passing Lowery's teams, Coontz stopped his team and told Crowell to get into the wagon. Lowery was a few steps past his west wagon, and from 20 to 30 feet from Crowell, carrying the brake pole in his hand. Crowell was about to get into the wagon with Coontz, and then deliberately took aim and shot Lowery above the knee, making a flesh wound. Lowery dropped his brake pole, clapped his hand upon the wound, and turned and started away. Crowell then fired the second shot from behind Lowery, and it took effect in the center of the calf of Lowery's leg. The bullet embedded itself in the large bone below the knee, fracturing the bone.
The principal claim that the verdict is against the evidence is on the ground that the shooting was in self-defense, but there was no evidence tending to make out such a defense. The evidence is contradictory as to whether Lowery even held the persimmon stick in a threatening attitude, and the jury were justified in believing that he was walking with it with one end on the ground. At any rate, he was from 20 to 30 feet from Crowell, and there was no danger, either real or apparent, from the club. Crowell had snapped the pistol at Lowery before, when he was not in danger, and had stooped and aimed under the wagon when Lowery was on the other side and not attempting to reach him.
Another ground for claiming that the assault was not with intent to commit murder seems to be that the shots, as they took effect, were not likely to produce death unless there should be blood poisoning. The testimony is that death might result from the wounds in case of blood poisoning, but the test whether a party is guilty of assault with intent to commit murder is not whether he succeeds in inflicting a wound which is likely to produce death. The question is whether the assault is of a character likely to be attended with dangerous consequences, and of a nature to cause death. Where the assault is committed deliberately and is likely to result fatally, the malice requisite will be presumed, and the question in this case is whether shooting at a man with a revolver in the manner proved by the evidence would be likely to kill him. The evidence fully warranted the verdict of the jury. The conduct of Lowery was not commendable, but there was no act on his part which would justify or excuse the assault.
The next complaint is that the court gave an instruction to the jury in the absence of the defendant, and that this was an invasion of his constitutional right to be present. The record shows that he was present, and the bill of exceptions recites that after the jury had retired for deliberation on their verdict, and had been out about two hours, they were brought into open court by the officer, and, at their request for an instruction as to the natureof the punishment, the court wrote and gave to them the following instruction: ‘You are instructed that the punishment for an assault to murder is imprisonment in the penitentiary; that the punishment for an assault with a deadly weapon is by fine and imprisonment in the county jail.’ The defendant was in the court room, but was sick, and lying on a bench about 50 or 60 feet from the judge. The instruction was read in a loud tone, sufficient to be heard all over the court room. There was an affidavit of the defendant on the motion for a new trial from which it is to be concluded that his counsel were present in the court room, but otherwise engaged. It does not show that they were not present, and they necessarily heard the instruction read. It is not improper to give an additional instruction after the jury has retired, where equal opportunity is given to the parties to submit further instructions if desired. Lee v. Quirk, 20 Ill. 392;Shaw v. Camp, 160 Ill. 425, 43 N. E. 608; 11 Enc. Pl. & Prac. 284. It is said, however, that the jury were not entitled to know the amount or character of punishment to be inflicted, since they were not to fix the punishment. We do not see how the defendant could have been harmed by the knowledge of the jury as to the nature of the punishment, or what would be the consequences of their verdict in that respect. With that knowledge, they might have found him guilty of an assault with a deadly weapon, if the facts justifed such a verdict. We do not think the verdict invalidated by the fact that the court gave the...
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