Davids v. People

• Decision Date: 24 October 1901
• Citation: 192 Ill. 176,61 N.E. 537
• Parties: DAVIDS v. PEOPLE.
• Court: Illinois Supreme Court

192 Ill. 176

61 N.E. 537

DAVIDS

v.PEOPLE.

Supreme Court of Illinois.

Oct. 24, 1901.

Error to circuit court, Kankakee county; Jno. Small, Judge.

William Davids was convicted of an assault with intent to murder, and he brings error. Reversed.C. H. Payson, T. F. Donovan, and T. W. Shields, for plaintiff in error.

Bert L. Cooper, State's Atty., and H. J. Hamlin, Atty. Gen. (W. J. Brock and D. H. Paddock, of counsel) for the People.

This is an indictment for an assault with intent to commit murder against plaintiff in error, filed in the circuit court of Kankakee county on October 2, 1900. The cause was continued to the January term, 1901, upon the motion of plaintiff in error. The cause came on for trial, at the January term, 1901. The jury returned a verdict finding the defendant guilty of the crime of assault with intent to commit murder in the manner and form as charged in the indictment, and that the defendant's age was above 21 years, and fixing his punishment at imprisonment in the penitentiary. Motions for new trial and in arrest of judgment were overruled. Thereupon the court rendered judgment in accordance with the verdict. This writ of error is sued out for the purpose of reviewing said judgment.

The material facts are substantially as follows: The plaintiff in error, William Davids, for some time prior to August 16, 1900, had been indebted upon an account for goods purchased to one Jules Gravelot, a hardware merchant living in Chebanse, in Kankakee county. On August 14, 1900, plaintiff in error, who lived on a farm four or five miles southwest of the village of Chebanse, had business in Chebanse, and met Gravelot on the street. Gravelot asked him to pay the amount of this old account, but plaintiff in error stated to him that he had no money to pay it then, and that a portion of it he would not pay in any event. There were angry words between them about the account, and plaintiff in error left, and drove out to his farm. He came back, however, in the afternoon, and was served with a summons by a constable by the name of Reilly to appear before a justice of the peace in a suit brought by Gravelot to recover the amount of the account. On August 15, 1900, plaintiff in error went to Watseka to consult his attorney, who advised him to pay the account. Plaintiff in error then came to Chebanse on August 16, 1900, and borrowed $10, peace, and perhaps several other places, in order to find the constable, Reilly, but failed to find him. Passing Gravelot's store, he saw several men there, and went in, and inquired where Reilly was. Gravelot remarked that he supposed he was looking for Reilly in reference to the suit brought against him, and said that plaintiff in error never paid his debts. Plaintiff in error denied this charge, and called Gravelot a liar. Gravelot came from behind the counter where he was standing, and went towards plaintiff in error. Some angry words passed between them, and one Albert Hoenck, who had ridden into town that morning with plaintiff in error in his buggy, intervened between the parties, and seized the arm of plaintiff in error, saying, ‘We don't want to have a fight here.’ Plaintiff in error was angry, and Gravelot said, ‘I won't hit him unless he hits me.’ Plaintiff in error then said, ‘Come out in the street, and I will smash you.’ Gravelot's store seemed to be on the corner, and fronted south. There was a door leading from it on the south side of the store, and there were one or two doors on the east side of the store, leading out into the street which ran along the side of the store. Plaintiff in error left the store by the south door, and went around into the side street nearly opposite one of the east doors, where his horse and buggy were hitched. Shortly after, Gravelot followed him out of the south door, and turned, and went northward upon the sidewalk opposite where plaintiff in error was standing. Gravelot stepped across a puddle of water near the sidewalk into the street, and in the direction of a row of hitching posts in the street, where the horse and buggy of the plaintiff in error were hitched, and where plaintiff in error was at the time. Plaintiff in error came into town that morning with a loaded pistol in his coat pocket. When he invited Gravelot to come out into the street and fight him, and the invitation was accepted, he took off his coat, and went towards the buggy, and threw the coat into the buggy. After plaintiff in error and Gravelot had left the store, several persons who were in the store went out upon the sidewalk, and towards the scene of the expected fracas. One of these persons was W. A. Schafer, who lived in Chebanse; another was Henry Daley; another was Henry Wullfe; and still another was W. O. Brown. These parties came out of the east door or doors upon the side street, and several of them heard the dispute or quarrel between plaintiff in error and Gravelot in the store before they went out. After Gravelot stepped across the mud puddle and into the street towards the place where the plaintiff in error stood near his buggy, or about that time, plaintiff in error went to the buggy, and took out his pistol. As Gravelot advanced towards him, he raised the pistol, and attempted to fire, but the cap or cartridge snapped, and the pistol did not go off. He then raised the pistol, and fired at or towards Gravelot, who was then distant about 10 or 15 feet. The evidence tends to show that the bullet grazed Gravelot's head, and caused the blood to flow, but the injury to Gravelot was not serious, the bullet lodging in the store beyond. As soon as plaintiff in error had snapped or fired his pistol, Gravelot started towards him, and at the same time Schafer and Wullfe and Daley started towards him, and from the opposite side of the street one Christian Maas, who was not more than four feet in the rear of him when the pistol was fired, advanced towards him. Maas caught him around the body. Gravelot seized him. Plaintiff in error was thrown down. His head was beaten with the pistol by Gravelot. One Eyerley kicked him while he was down. Maas exclaimed, ‘Shoot the son of a bitch!’ Two of plaintiff in error's ribs were broken, and the skin of his face was badly cut. When plaintiff in error went to Watseka on August 15th, the day before the difficulty, to see his lawyer, he there obtained the revolver which was in his possession at the time of the difficulty. Previous to this time plaintiff in error had had a falling out with his wife, and there had been a divorce between them. This revolver had been sold by Gravelot to one Hawkins, a hired man in the service of plaintiff in error, and had been introduced in evidence, and used in some way as an exhibit in the divorce suit between plaintiff in error and his wife. Plaintiff in error states that when he went to Watseka to see his lawyer about the suit brought against him by Gravelot his lawyer told him to take away the revolver and the cartridges with it, as he no longer wished to keep possession of it. That night plaintiff in error stayed at the farm of a Mr. Benjamin, where he took the revolver and the box in which it had been placed. The revolver was there seen by the family, and there is some evidence tending to show that one or more of the men on the place used it on the morning of August 16th to shoot at a mark. A Miss Buffington, who was a niece of Benjamin, and was at his house at the time, stated that Mr. Benjamin's little daughter, 12 years old, had the revolver, and was handling it, and she told plaintiff in error to take it. Thereupon plaintiff in error put the revolver in his pocket, and had it in his pocket when he started to Chebanse in his buggy on the morning of August 16th. Albert Hoenck, who rode into the village in the buggy with him, says that while they were going in plaintiff in error took some cartridges out of his pocket, and loaded the empty barrels of the revolver, and then replaced the revolver in his coat pocket.

There is some evidence tending to show that more than a year prior to the time when this difficulty occurred, to wit, about May, 1899, after the trouble had begun between plaintiff in error and his wife, and after their separation, some men came to the farm of plaintiff in error, and maltreated him. The evidence tends to show that they were masked; that they blindfolded him; that he was knocked down and beaten; that tar was poured over him; and that these masked men threatened that, if he did not take his wife back, or give her his property, they would kill him. Before they left, they took from him the cloth that had blindfolded him, but the evidence fails to show that he recognized all of these parties, or knew who all of them were. After leaving him, they went towards Chebanse.

Among the instructions given by the court for the defendant at his request, were the following: ‘(14) You are instructed that the law is, if a person is assaulted in such a way as to induce in him a reasonable belief that he is in actual danger of losing his life or of suffering great bodily harm, he will be justified in defending himself, although the danger be not real, but only apparent. Such a person will not be responsible, criminally, if he acts in self-defense from real and honest convictions as to the character of the danger induced by reasonable evidence, although he may be mistaken as to the extent of the actual danger. (15) You are instructed by the court that if you find from all the evidence in this case that Jules Gravelot and the defendant, on the day in question, went out upon the streets in Chebanse to engage in a first fight; and if you further find from all the evidence in this case that at the time said parties went out upon the streets the defendant had no thought or intention of shooting the said Gravelot; and if you further find from all the evidence that just before the parties met upon the street the defendant saw a number of other persons advancing towards...