McCoy v. People

• Citation: 175 Ill. 224,51 N.E. 777
• Parties: McCOY v. PEOPLE.
• Decision Date: 24 October 1898
• Court: Supreme Court of Illinois

175 Ill. 224

51 N.E. 777

McCOY

v.PEOPLE.

Supreme Court of Illinois.

Oct. 24, 1898.

Error to circuit court, McLean county; Colostin D. Myers, Judge.

Benjamin McCoy was convicted of murder, and he brings error. Affirmed.Frank Gillespie and A. W. Peasley, for plaintiff in error.

R. L. Fleming, State's Atty., and E. C. Akin, Atty. Gen. (O. R. Trowbridge, of counsel), for the People.

CRAIG, J.

Wilbur McCoy and the plaintiff in error, Benjamin McCoy, were jointly indicted and tried in the McLean circuit court for the murder of John Bullock, the trial resulting in the acquittal of Wilbur McCoy and the conviction of Benjamin McCoy. Motions for a new trial and in arrest of judgment having been overruled, the court, in pursuance of the verdict of the jury, entered judgment on the verdict, and sentenced Benjamin McCoy to imprisonment in the penitentiary for 14 years. He brings this writ of error, and asks to have the judgment reversed.

Plaintiff in error contends that the evidence will not sustain the judgment of conviction against him. The evidence in the record shows substantially the following facts: The two defendants, Wilbur McCoy and Benjamin McCoy, were aged, respectively, 21 and 19 years, and lived with their father in Shirley, a small town in McLean county, Ill., on the line of the Chicago & Alton Railroad. At the time of the homicide the deceased, John Bullock (sometimes called John Smith), and plaintiff in error, Benjamin McCoy, both worked for J. L. Douglass on his farm close to Shirley. It appears there were several young men living in Shirley who frequently congregated at the railroad depot in the evening. On the evening of the homicide it was wet and misting. There was a church festival at a house not far from the depot, and deceased was dressed to attend the festival. He came into the depot waiting room shortly after 8 o'clock, and was waiting for his employer's son to bring him some money. The platform lamp hung between the window and the waiting-room door. There was a target light and another light outside, a light in the office room, and a lamp was on a shelf in the waiting room. One door opened into the ticket office, and there were two outside doors to the waiting room, and one window opening on the platform, and a south window. There was a pile of car doors at the south end of the depot, about five feet high. There was at that time almost incessant lightning. There is an elevator opposite the depot. The light of the platform lamp was thrown against the elevator, and a person passing between the elevator and depot could have been recognized. Shortly after Bullock entered the waiting room, the witness Willie Dunk entered, and saw Bullock, who was the only person there. Soon Wilbur McCoy and one Mark Roberts came in, followed by Nels Souders and Willie Zeigler. Bullock, in talking with Willie Dunk, said that one Bruno Warlitz had told lies on him, and that he could whip him and all his friends. On hearing this, Wilbur McCoy said that Warlitz had done nothing of the kind; that he attended to his own business. Bullock replied that he had told lies on him, and that he could whip Warlitzand all his friends. Some further words passed, when Nels Souders took Bullock by the arm, and they went out of the waiting room together, and walked to the south end of the platform. As Souders and Bullock went out, Benjamin McCoy, plaintiff in error, came into the waiting room, but immediately went out. Souders and Wilbur McCoy came out then with Mack Roberts. Willie Dunk was on the platform. As Wilbur McCoy came out of the depot he said to Bullock, ‘Now, if you want anything, you can get it right here.’ He had gone about a quarter of the way from the door to the corner of the depot. Wilbur McCoy and Bullock were near the edge of the platform. Wilbur was facing the depot, and Bullock was facing Wilbur, with his back towards the depot building. Souders, after entering the waiting room, looked through the window, and saw a person near Bullock and Wilbur. A shot was fired from behind, the bullet entering Bullock's head three inches below and one-quarter of an inch back of the opening of the left ear. Death was produced instantly, the body falling on the rail of the track.

The defendants introduced no testimony, but statements made by the defendants after the homicide were testified to by witnesses for the people. The plaintiff in error told the coroner, James Hare, that he was only about four feet away when the scuffle began on the platform between his brother, Wilbur, and Bullock; that the shot came from behind, that he was that far away when Wilbur and Bullock went off the platform. The wound was powder-burned, showing the person who fired the shot was close behind Bullock. This admission of plaintiff in error shows he was near enough to have fired the shot, and no other person was proven to be near Wilbur McCoy and Bullock, Sally Anthony, on the Sunday evening after the homicide, was walking with plaintiff in error. She testified he said to her, in substance, that he had been at home until after supper, and came up with Shelby Newby to the festival to get cream, and take some home; that he went over to the depot, and went in; that the boys were talking; that pretty soon they went out on the platform; that he followed them out, and stayed at the corner of the depot where the car doors were; that he heard them talking, and heard Smith (Bullock) quarreling with Wilbur; that Wilbur was his brother, and he said he had a right to help him; that before he reached them Smith (Bullock) fell on the track; that he expected they would watch him pretty close; that he did not know who fired the shot, and he supposed it never would be known. The only help Wilbur, the brother of plaintiff in error, received, as shown by the evidence, was from the person who fired the fatal shot. The admission of plaintiff in error that he helped him, in connection with the other circumstances in evidence; his proximity to the deceased; the fact that he was possessed of a borrowed revolver of the kind and caliber of the one with which Bullock was shot, and that he bought and paid for it after the homicide; the fact that within a few days before the shooting plaintiff in error used expressions showing ill will towards Bullock, using the expression, ‘If he monkeys with me I will throw a ball at him,’ and at another time saying, when Bullock got angry at something, ‘If he monkeys with me, I will fix him;’ the fact that no weapon was found on deceased; the condition of the clothing on the body after deceased was shot, his overcoat being buttoned up, kid gloves on his hands, and a buttonhole bouquet on, which the witnesses stated looked as though just put on, which showed that there could not have been much of a scuffle, and certainly not one which required the use of a deadly weapon upon a person unarmed; the fact that Wilbur McCoy and the other young men present assisted to carry the body of deceased into the depot, while the plaintiff in error ran away from the depot, and was not seen again that night,-must have satisfied the jury beyond a reasonable doubt of the guilt of Benjamin McCoy. All this testimony stands undisputed, and yet plaintiff in error insists that the evidence is not sufficient to sustain a conviction. The law has placed the determination of that question with the jury, and it is only when this court is satisfied, from a careful consideration of the whole testimony, that there is a reasonable doubt of the guilt of the accused, that it will interfere with the verdict of the jury on the ground that it does not support the verdict. Gainey v. People, 97 Ill. 270. We are satisfied the evidence sustains the verdict of the jury, and that the jury would have been justified in inflicting, under the evidence in the record, a much heavier punishment.

It is next insisted that the third instruction given on the part of the people is erroneous. It is as follows: ‘Malice includes not only anger, hatred, and revenge, but every other unlawful and unjustifiable motive. Malice is not confined to ill will towards an individual, but is intended to denote an action flowing from any wicked and corrupt motive,-a thing done with a wicked mine,-where the fact...