Kennedy v. People of State

• Court: Illinois Supreme Court
• Writing for the Court: BREESE
• Citation: 40 Ill. 488,1866 WL 4519
• Parties: JOHN KENNEDYv.THE PEOPLE OF THE STATE OF ILLINOIS.
• Decision Date: 30 April 1866

40 Ill. 488
1866 WL 4519 (Ill.)

JOHN KENNEDY
v.
THE PEOPLE OF THE STATE OF ILLINOIS.

Supreme Court of Illinois.

April Term, 1866.

WRIT OF ERROR to the Circuit Court of Lake county; the Hon. E. S. WILLIAMS, Judge, presiding.

At the September Term of the Circuit Court of Cook county, John Kennedy, Patrick Fleming and William Corbett were indicted for the murder of one Patrick Maloney. At a subsequent term of that court, on motion of Kennedy, he was ordered to have a separate trial. Corbett and Fleming were tried at the following November Term, and convicted of the crime of murder, and have since been executed. After the conviction of Corbett and Fleming, on petition of Kennedy, there was a change of venue in his case to Lake county, where, on the 6th day of February, 1866, he was tried and convicted of murder, and sentenced to be executed.

The testimony given upon the trial was substantially as follows:

Honora Maloney, wife of the deceased, called on behalf of the prosecution, testified as follows: My husband died on Sunday night, before thanksgiving, a year ago, in his own house, in the town of Cicero, near Sand Ridge, in Cook county. He was called tailor Maloney, because he was a tailor by trade. There was an inquest held on his body the second day after he was killed, by Dr. Wagner. I went to bed about eight o'clock on this night, with my husband and children. When we had been in bed two or three hours a knock came to the side-door; there was a little entry around the door, and this was broken into, and the knock came to the side-door. I awoke my husband and told him somebody was knocking at the door. He got up, and without dressing, lit a light and went to the door and called out to know who was there. I did not hear the answer, but soon I heard a noise like a scuffle, and heard him call out to me to come. I jumped up out of bed, and without waiting to dress, ran to him, and found him pushing against the door, which was partly open, and trying to close it against somebody outside, who were pushing it open. I threw myself against the door with him, but we could not close it, and in a minute or two I heard two or three shots fired, and my husband fell back upon the floor. After the shots were fired, I heard a person outside say, “That will do, come along.” I then went to the window and saw three or four men passing by; am certain there were three. My children ran under the bed when the noise came, and, being frightened, they would not come out, so I sat down by my husband until morning. He was shot on the left side of his breast, and died about ten or twelve minutes afterward. There were two shots fired through the door, but only one hit him. He was in good health before. Our house was on the left side of the road coming to Sand Ridge, and four or five feet from the road. It was only a shanty, about the size of two large bed-rooms. The next house to ours was about three blocks off. It was a dark night, cold, blustering and windy.

Dr. William Wagner, the coroner of Cook county, testified that he held an inquest on the body of the deceased, and gave as his opinion that his death was caused by a bullet taking effect in the left breast. He testified that the door of Maloney's house bore the marks of two bullets. He recollected that the murder took place on the 20th of November, 1864.

Philip Brenan testified: I know William Gubbins; I was in the tavern business and keeping hacks in November, 1864; I recollect letting a hack one Sunday night; four men came for it; Corbett and Fleming were all I knew; It was quite windy; they said they wanted to take a ride; it was between seven and ten o'clock in the evening; they came back between eleven and one o'clock; on their return, the horses were sweating excessively, and had the appearance of having been driven quite hard; it was a cold, windy night; the driver was William Gubbins.

On cross-examination by the defendant: I kept but one hack; it was in the fall of the year 1864 that I let the hack; I have nothing definite to fix the time; it was a boisterous night, inclined to rain a little, and dark; Gubbins was not at work for me at this time, but I hired him for that time to drive the parties; he came in after the parties hired the hack; it was before the people had closed their houses; they took a drink before going; I had known Corbett and Fleming five or six weeks; during that time they were around that neighborhood; I used to see them often; they drank at my bar; they returned about eleven or twelve o'clock; Corbett and Fleming returned with the hack; can't say whether they all four returned; they paid the driver for the team; Corbett and Fleming came around the next day as usual, and continued to appear around there up to the time of their arrest; they frequented the Olive Branch saloon; they did not appear to have any business; they had the name of being bounty jumpers; never saw the other two men after that night.

James Finan testified: I have known the defendant, Kennedy, three or four years; have been intimately acquainted with him nearly two years; in 1864, I was driving team for Whaling & Bowen; did not know Corbett or Fleming; I knew where Maloney lived; he was called tailor Maloney; he lived on Sand Ridge, about six miles from Chicago; one night, while I was driving the team, I went down to the barn to feed the horses, and, after feeding them, as I was going home, I met Corbett, Fleming and Kennedy on the street in Chicago, after dark, on Sunday night; Kennedy asked me if I knew where the Sand Ridge was; I said I did, when Fleming said he had a sick aunt out there, and he wanted to see her before he left, as he was going away; he asked me to go along and show him the place; I said I could not go, as I had to go out in the morning after a load of hay, and it was too cold to walk out there; Fleming said he would hire a hack if I would go; we then went down on Canal street and went into a saloon, and waited there until the hack came up to the door; Kennedy was with us; we drove down on Polk street and stopped at Sam McNara's saloon; Fleming, Corbett, Kennedy and the hack driver got out and went into the saloon and had a drink; I remained in the hack; when they came out they had a small bottle with them which they put upon the seat and drank out of it several times while going out; each of them drank; they drove on a little further and stopped again, but whether they went into a saloon or not I cannot tell, but they got out of the hack; then they got in the hack and we drove on and did not stop until we got out to Sand Ridge; we went out on West Lake street; after we got out a mile from the town, Fleming asked me how far it was to tailor Maloney's house; I said about three or four blocks; then he called to the driver and stopped the carriage and got out, and Fleming asked me to show them tailor Maloney's house; I went a little way with them and showed them the house, and then I went back to the carriage; Gubbins was with the hack when I came back; I went near enough to the house to see it; they were gone five, ten or fifteen minutes after I came back to the hack; after they came back, Fleming or Corbett said to the driver, “drive on;” Fleming and Kennedy got inside, but Corbett was outside with the driver; they drove on then and came into the city, and I got out a couple of blocks west of Halstead street; the horses were driven in pretty fast; I did not, at the time, know what their business was out there, except that Fleming said he wanted to see his sick aunt; I heard of the death of Maloney the Saturday after the night I went out there; I was one day in Halpin's saloon, in Chicago, the spring following; Mr. Halpin asked me to attend to the house a little time for him, as he wanted to go out; Shortly afterward Kennedy came in and asked me for something to drink; he was quite well on in liquor, and after drinking, he said to me, “if I knew you would not keep a secret you would not live long;” I never had any difficulty or any dealing with him which he would enjoin me to keep a secret.

Cross-examination: Kennedy was a married man; I used to meet him when coming from the barn in the morning, and sometimes in the evening, and sometimes when going to my work. He used to tell me he was at work at the St. Louis depot; he told me a year ago last fall he was working there. I always heard he was married and had a family, but never knew how large, or went to his house. I used to see him very often when I was going to my work. I met Kennedy that night with Fleming and Corbett, about seven or eight o'clock. I was going west when they overtook me, and we went back together. I did not know the other two, but was introduced to them by Kennedy. Kennedy asked me if I knew where the Sand Ridge was, and then Fleming asked me to go with them. I said I did not want to go, and he said that his...