People v. Birger

• Decision Date: 06 April 1928
• Docket Number: No. 18601.,18601.
• Citation: 329 Ill. 352,160 N.E. 564
• Parties: PEOPLE v. BIRGER.
• Court: Illinois Supreme Court

329 Ill. 352

160 N.E. 564

PEOPLE

v.BIRGER.

No. 18601.

Supreme Court of Illinois.

Feb. 24, 1928.

Rehearing Denied April 6, 1928.

Error to Circuit Court, Franklin County; Charles H. Miller, Judge.

Charley Birger was convicted of murder, and he brings error.

Affirmed.Charles A. Karch, of East St. Louis, Scerial Thompson, of Harrisburg, and R. E. Smith, of Benton, for plaintiff in error.

Oscar E. Carlstrom, Atty. Gen., Roy C. Martin, State's Atty., of Benton, and Roy D. Johnson, of Springfield, for the People.

DE YOUNG, J.

Charley Birger, Art Newman, Conrad Ritter, Ray Hyland, and Harry A. Thomasson were indicted in the circuit court of Franklin county for the murder of Joe Adams. Ritter was never apprehended. Thomasson entered a plea of guilty, and was sentenced to imprisonment in the penitentiary for life. Birger, Newman, and Hyland were jointly tried, and the jury found them guilty. The punishment of Birger was fixed at death, and of Newman and Hyland at life imprisonment. After motions for a new trial and in arrest of judgment had been made and denied, judgments were rendered on the verdicts. By this writ of error Birger seeks a review of the record.

In the latter part of the year 1926 there existed in Southern Illinois two groups of men engaged in criminal pursuits, and hostile to each other. One of these groups was known as the Shelton, and the other as the Birger, gang. The members of the Shelton gang lived in and about the city of East St. Louis, in St. Clair county, but often extended their operations into Franklin, Williamson, and other counties in Southern Illinois. Birger was the proprietor of a roadhouse called ‘Shady Rest,’ or ‘The Cabin,’ located about ten miles east of the city of Marion, in Williamson county, on route 13 of the state highway system. Birger's associates, among others, were Newman, Ritter, Hyland, and Thomasson. Birger and Newman resided in the city of Harrisburg, in Saline county. Ritter and Hyland spent mort of their time at Shady Rest. Thomasson, who had lived in the city of West Frankfort, in Franklin county, made Shady Rest his place of abode in November and the early part of December, 1926. From the 7th to the 12th of December Thomasson, under the name of Harry Johnson, rented, and with one Pearl Phelps, whom he represented as his wife, occupied, certain rooms in the home of Mrs. Bessie Rhodes, at 405 West Webster avenue, in the city of Benton, in Franklin county. Other men associated with Birger to a greater or lesser extent were Elmo Thomasson, a brother of Harry A., Teddy Nurock, Steve George, Clarence Rone, Harvey Dungey, Joe Todd, and Fred Wooten. Harry A. Thomasson was 19 and Elmo Thomasson was 17 years of age at the time.

In December, 1926, Joe Adams was president of the village of West City, a municipality which adjoins the city of Benton, the county seat of Franklin county, on the west. The village has a population of approximately 500. Adams, with his wife and two children, lived on the south side of West Main street, a paved street running east and west through both West City and Benton. Birger and certain of his associates believed that Adams was affiliated with, or in any event had aided, the members of the Shelton gang. Enmity existed between Birger and Adams, and the former had threatened the latter's life on several occasions. On October 18, 1926, Birger, with about twelve of his associates, including Newman and Hyland, drove in two automobiles to a barbecue located a short distance west of West City. Birger, pointing a machine gun at the proprietor, told him that they intended to kill his friend, Joe Adams. On the same day Birger and some of his henchmen drove past Adams' house in an automobile, and pointed guns at Adams and his brother Gus while they stood outside, engaged in conversation. The lives of the two brothers were threatened by Birger at the same time. About the 15th of November Birger told Mrs. Adams, over the telephone, that her husband would be killed, and advised her to obtain additional insurance on his life. A night or two later a bomb thrown at Adams' house from a passing automobile exploded in the front yard, making a large hole in the ground, breaking windows, and otherwise damaging the house. On the evening of the 8th of December, David Garrison and Alva Wilson, both 20 years of age, stopped at Shady Rest about three hours. While there, Birger offered them $100 if they would go to West City, call a man to his door, and shoot him when he appeared. Birger stated that guns and an automobile would be supplied, and that a man would accompany them. The name of the person they were asked to shoot was not disclosed. Birger's proposition was promptly rejected by Garrison and Wilson.

On Saturday evening, December 11, 1926, Harry A. and Elmo Thomasson drove to Shady Rest in a stolen Ford roadster. Between 9 and 10 o'clock Newman called them into the west room of The Cabin and closed the door. Birger and Ritter were present. When the two brothers were seated, Birger told them that he had a job which he wanted them to perform on the next day. Newman thereupon inquired of Harry A. Thomasson whether he had ever killed anybody. The latter replied, ‘No, Art; I never had enough against any one to kill him.’ Birger then declared, ‘We picked you two boys to kill Joe Adams.’ Newman added that the job would be easy, because no one would suspect the two brothers; that revolvers, an automobile, and a driver would be furnished them; that a letter purporting to come from Carl Shelton, whose relations with Adams were friendly, would be addressed to Adams; that they were to go to the latter's house, and present the letter to him; that, while he was engaged in reading the letter, they should shoot him; and that, in the event of his absence from home, they should wait until he returned. In carrying out this plan, the use of the Ford roadster was suggested, but opposition was made thereto, and Birger then proposed that a Chrysler automobile should be used instead, and that this car be burned after the crime had been committed.

Following this conversation, Hyland was called into the room, whereupon Birger, addressing him said, ‘Jew, we want you to drive the Chrysler car to-morrow to kill Joe Adams.’ Newman made some derogatory remark concerning Hyland's lack of courage, when the latter answered Birger, ‘I don't know, Charley; I will think it over.’ Harry A. Thomasson told Birger that he would have to leave to care for the live stock of his brother Fred and to buy coal and groceries. Elmo Thomasson also said that he was compelled to leave. Birger answered that one was enough to attend to the live stock; that Elmo must remain; and that, if Harry did not return the following morning, he (Birger) would send for him. Elmo stopped at Shady Rest that night, but Harry left, and reached his home in Benton about 2 o'clock on Sunday morning. Nine hours later Hyland and Elmo Thomasson called for Harry, and the three returned to Shady Rest, arriving there about 1 o'clock in the afternoon. They went to the basement, where, among other persons, they found Newman and Ritter. Newman asked Harry A. Thomasson whether he was ‘getting shaky,’ and the latter replied, ‘Just a little.’ Newman and Ritter then called the two brothers into a conference in a room upstairs. Hyland soon followed Ritter, handed a gun to Newman and said, ‘This ought to do, hadn't it?’ Newman answered in the affirmative, and continued, ‘Jew, take this down to the basement and poison and split the bullets.’ Hyland complied with the request. Ritter wrote a note, inclosed it in an envelope addressed to Joe Adams, sealed the envelope, and gave it to Elmo Thomasson. Hyland returned to the room and handed a revolver to Newman, who examined it, smelled the bullets, and exclaimed, ‘That ought to get him; if one of them ever hits him, he will never get well.’ Newman then gave the revolver to Harry A. Thomasson. His brother, Elmo, already had a revolver. Newman gave the two brothers and Hyland further directions concerning their part in the plot to kill Adams, and stated that after he was shot he (Newman) would meet them at the junction of routes 2 and 14 of the state highway system, approximately 18 miles west of the city of Benton; that from this point they would proceed south on route 2 about 3 miles to a certain roadhouse at Dowell, in Jackson county; and that then they would be taken to Birger's and Newman's homes in Harrisburg, where they might remain as long as they desired. Before leaving, Newman and Ritter gave the Thomasson brothers and Hyland each two glasses of whisky. Newman and his wife, and Ritter and Ollie Potts, his paramour, entered a closed Chrysler automobile. Another closed Chrysler car covered with mud, driven by Hyland, and carrying Harry and Elmo Thomasson, followed.

The cars proceeded west on route 13 to the city of Marion, and thence north on route 37, avoiding the densely populated portions of the city, to an automobile accessory shop a short distance north of the city limits. At this shop Newman and Ritter bought a fan belt and gasoline for the car Hyland was driving. While the belt was being adjusted, Newman came to the second car, and told its occupants that he would meet them at the junction west of Benton, and he suggested that they drive carefully, since he had a long distance to go in order to meet them. Newman's car was turned south to reach the junction by route 37 to Marion, route 13 west to Carbondale, and route 2 north to the junction. Hyland drove north over route 37 to Benton, and thence to the home of Mrs. Rhodes, where Harry A. Thomasson had rented rooms. After stopping here a few minutes, the car was driven about five blocks north and west to a point a short distance east of the home of Adams. The two brothers left the car at this point. Hyland drove on, and stopped about a block west of Adams' house. The Thomasson boys walked rapidly to the house, knocked at the...