Everett v. People

• Decision Date: 23 June 1905
• Parties: EVERETT v. PEOPLE.
• Court: Illinois Supreme Court

216 Ill. 478

75 N.E. 188

EVERETT

v.PEOPLE.

Supreme Court of Illinois.

June 23, 1905.

Error to Criminal Court, Cook County; R. S. Tuthill, Judge.

Lonney Everett was convicted of murder, and brings error. Affirmed.

Rehearing denied October 12, 1905.

Richard J. Finn, for plaintiff in error.

W. H. Stead, Atty. Gen., John J. Healy, State's Atty., and Fletcher Dobyns, Asst. State's Atty., for the People.

RICKS, J.

Plaintiff in error, together with John Gibson, John Gallion, and Albert Johnson, was indicted at the October term of the circuit court of Cook county, charged with the murder of Henry Maskey. At the December term the defendants entered their plea of not guilty, and the trial was entered upon. After it had proceeded for a time, a nolle prosequi was entered as to defendants Gallion and Johnson, and later a like order was entered as to the defendant Gibson. The trial proceeded as to the plaintiff in error, who was found guilty, and his punishment fixed at imprisonment in the penitentiary for 14 years. Motions for new trial and in arrest were made and overruled, and judgment entered. From that judgment this writ is prosecuted.

On August 20, 1904, the employés at the Union Stockyards were on a strike, and the plaintiff in error and many others were employed in the yards in the place of the strikers, and were called ‘strike breakers.’ They were taken to and from their work by special train. At about 5:30 o'clock p. m. of that day a train of nine coaches and engine, loaded with these so-called strike breakers, many of whom were women, was passing down Fortieth street, east from the yards, toward the city. A majority of the passengers on the train were colored people. Emerald avenue crosses Fortieth street, and is a street running north and south, and is of the width of about 60 feet. Approaching Emerald avenue from the west, the train passed under a viaduct which carries traffic over Fortieth street at Emerald avenue. At that point Fortieth street is covered by many railroad tracks, and on the day in question Henry Maskey, the deceased, and several other persons, were standing on the south side of the crossing, and others were on the north side of the crossing. A police officer had escorted five women to that crossing to take that train, and placed them in custody of one John E. Kinsella, a switch watchman at that crossing, with directions to stop the train in order that the women might get aboard. When the train reached the crossing the switchman signaled it to stop, and it did stop, with the third car from the front of the train on the crossing. Maskey at that time was standing a little south of the train, leaning against a telegraph pole. The train was heavily loaded-so much so that the platforms were covered with people, and it was difficult to get access to them. One of the women attempted to get on the car, but in doing so lost her balance, or in some manner fell back from the car, and screamed. A signal was given for the train to move ahead, and the woman fell just as the car started. Her screaming seemed to excite others there, and the evidence tends to show that other women there also screamed. The cars back of this third car were either under or west of the viaduct, so that the view was obstructed. While the evidence does not expressly so show, it is manifest that those on the train that were working in the stockyards anticipated an attack on the train by the strikers, and the hallooing of the women caused a panic to start, which spread through the train. Immediately upon the screaming and the starting of the cars, shooting began from the third car from the front, and as the various cars passed the crossing a number of shots were fired from each car, both on the north and south sides, until the third car from the rear was at the crossing, and as that car pulled onto the crossing the evidence shows that plaintiff in error went to the open window on the south side of the car, and towards the center, and extended his arm through the open window and fired three shots. Just at that time three persons were struck by bullets, namely, Henry Maskey, Dennis Ryan, and Henry Hanson. They were all standing near each other. Ryan and Maskey were killed, and Hanson slightly injured. Maskey was shot in the forehead, and almost directly between the eyes, and died instantly. The bullet that killed him was from a 38-caliber gun. There was no attack made upon the train, nor was there any threat or attempt to make one, so far as shown by the evidence, nor was there a shot fired, other than those from the train. The evidence tends to show that there were from 50 to 100 shots fired altogether, some witnesses placing the number of shots fired from the car alone in which defendant was, as high as fifty. It is manifest from the evidence that there was much excitement and indiscriminate discharging of firearms by those on the train.

A reversal is urged upon the ground that the evidence does not sufficiently point out the plaintiff in error as the person who fired the fatal shot, and that the court erred in giving and refusing instructions. The shooting was without provocation or justification, and, so far as it was directed toward those standing in the street, was so reckless and wanton and in such utter disregard of human life that the law would imply malice.

When the nolle was entered as to the codefendants of the plaintiff in error, they were placed upon the stand by the people. Johnson testified that he was in the third car from the rear, sitting facing a lady on the south side of the train, and that, as the car pulled onto Emerald avenue, Gibson and plaintiff in error passed between them and to the open window and began firing; that the lady got up and ran; that he knelt down between the seats to protect himself, and that three shots were fired, apparently over his head; that after the firing ceased he saw Everett take cartridges out of his stocking and hide them behind the seat, but did not see the revolver. Gibson testified that when the shooting began he was standing in the third car, talking to other parties, and that the plaintiff in error came into the car, and went to the open window, and was firing his pistol; that just as Everett ceased firing he looked out of the window, and saw the deceased, Maskey, lying down near a telegraph pole. Gallion testified that he was down near the end of the third car from the rear when the shooting took place, and that when it ceased he got up and went toward the middle of the car, and found Everett and Johnson sitting in seats on the south side of the car, facing each other; that he sat down by Johnson, and that about that time some one said: ‘Hide your guns. They are searching the car;’ and that he saw Everett put a gun similar to the one in evidence under his seat; and that Everett then put his left foot on the seat, took some cartridges out of his stocking, and rammed them down between the cushion and the back of the seat, and they fell through on the floor. Kinsella testified that he stood near the train, on the north side, and was trying to get the women on; that, when the women screamed, shooting began at the third car from the front, and continued until after the third car from the rear had come upon the crossing; that in the third car from the rear, and on the...