People v. Blevins

• Decision Date: 25 October 1911
• Citation: 251 Ill. 381,96 N.E. 214
• Parties: PEOPLE v. BLEVINS.
• Court: Illinois Supreme Court

251 Ill. 381

96 N.E. 214

PEOPLE

v.BLEVINS.

Supreme Court of Illinois.

Oct. 25, 1911.

Error to Circuit Court, Johnson County; William N. Butler, Judge.

Newton C. Blevins was convicted of murder in the first degree, and he brings error. Reversed.Charles J. Huffman and O. R. Morgan, for plaintiff in error.

W. H. Stead, Atty. Gen., Thomas F. Sheridan, State's Atty., and Joel C. Fitch (Noleman & Smith and D. T. Hartwell, of counsel), for the People.

FARMER, J.

Plaintiff in error, Newton C. Blevins, was indicted at the August term, 1910, of the circuit court of Johnson county for the murder of James De Palma, and Italian, employed by the Carter Construction Company as foreman of a construction gang which had been engaged in constructing a railroad near Marion, Ill. Plaintiff in error was a coal miner living at Scottsboro, Williamson county. On June 7, 1910, he and Luke Newton, with four others, went to a place known as ‘Mason's Tank,’ in Johnson county, on a fishing expedition. They had with them a tent and fishing outfit. Mason's tank is one of the tanks on the Big Four railroad from which locomotives are supplied with water, and is located just north of Cache creek. The railroad at this place runs in a southwesterly direction. North of the tank is a small lake covering about 2 acres. Connecting with it from the north is Cypress creek, a stream or slough about 40 or 50 feet wide and a quarter of a mile in length. On the west side of this slough the land is high, and on the east side it is low and marshy and covered with dense brush and weeds. At the south end of the lake there is a concrete dam about 30 feet wide, near which the party of which plaintiff in error was a member pitched their tent. John Malee and James Bean, miners from Saline county, were also on a camping and fishing trip, and their tent was located near by. The mines at that time were closed on account of a strike, and had been since April 1st. On the morning of June 10th all the party, except plaintiff in error and Newton, returned to Marion. Before leaving they were instructed to buy some provisions for plaintiff in error and Newton at Marion, and send the same by express to Karnak, a station about a mile south of Mason's tank. Plaintiff in error told them he had no money with which to pay the express on the provisions to be sent, and one of them gave him a quarter for that purpose. Plaintiff in error went to the water tank with those who were leaving, and after they boarded the train he started to return to the camp. While walking along the track he met James De Palma, with whom he was acquainted, who stated to him that he was going to visit his brother, who was working six miles below Karnak. At plaintiff in error's invitation he went over to the camp. He was introduced to Newton, and the three of them took several drinks of whisky. During the conversation which followed, De Palma showed them $100 in money and a certificate of deposit on a bank in Metropolis, Ill., for $300. De Palma stayed but a short time, and then went away, returning again about noontime. According to the testimony for the people, De Palma was last seen eating dinner with plaintiff in error while Newton was sleeping off a drunk in the tent. For some reason plaintiff in error and Newton abandoned their previous intention of remaining at the camp, and on the afternoon of June 10th returned home.

De Palma was never seen alive afterwards. The conduct of plaintiff in error, and the exhibition by him of considerable sums of money and the cashing by him of the certificate of deposit issued to De Palma, caused suspicion to be directed against him, and a search to be made for the body in the neighborhood of the tent occupied by him and his friends while fishing. On July 2d a body so badly decomposed as to be unrecognizable from its features was found in the brush on the east side of the slough. There were one or two bullet holes through one side of the skull, and lead was lodged in and taken from the opposite side. Physicians testified that these wounds were sufficient to cause immediate death. Relatives and acquaintances of De Palma testified that they recognized the skeleton as his from dental work done on the teeth and a chip being broken off of one; also from a hat found with the skeleton and the shoes on its feet. The facts and circumstances proven by the prosecution tending to show that plaintiff in error murdered De Palma and robbed him were very strong. He attempted to explain his possession of money immediately after June 10th and how he happened to cash the certificate of deposit. He testified that he had over $100 saved up at that time, and that after he and Newton returned home Newton exhibited the certificate of deposit and asked him to cash it; that Newton gave him to understand he won the certificate in some game with De Palma, and promised he would give him part of the money if he would get the certificate cashed. He testified he took the certificate to the bank, received the cash for it, took it to Newton, and Newton gave him three $20 bills. The testimony of the plaintiff in error was contradicted by that of Newton and some other witnesses. Newton testified he could neither read nor write. The certificate, when presented at the bank, was indorsed with the names of De Palma and plaintiff in error. The cashier of the bank that issued the certificate of deposit testified he could not say the signature of De Palma on the back of it was in De Palma's handwriting, but in his opinion it was. Mike De Palma, a brother of James De Palma, and T. H. Walker, the contractor for whom James De Palma was foreman, testified the signature on the back of the certificate of deposit was not in the handwriting of James De Palma. The certificate was cashed at the Marion State & Savings Bank, in Marion, and the cashier of that bank testified he asked plaintiff in error, before cashing it, if the signature was De Palma's and why De Palma gave the certificate to him; that plaintiff in error said the signature was De Palma's, and that he had traded him some property for the certificate. Plaintiff in error testified Newton told him to make that explanation if the bank made any inquiry as to how he came in possession of the certificate. Newton denied this. Plaintiff in error had considerable money on his way home on June 10th with Newton. Newton testified he showed him his pocketbook with a ‘wad’ of money stuffed into it, but the witness had no knowledge of the amount. The conductor of the train they boarded to go home testified plaintiff in error exhibited to him a $20 bill.

The foregoing is the substance of a part only of the testimony; but, as the judgment must be reversed for the reasons hereafter stated, we do not deem it necessary or important to further detail the evidence or its substance. Error was assigned that the record as certified by the clerk did not show (1) the date of the return of the indictment; (2) that it did not show of whom the jury impaneled to try the case was composed, or that they were sworn; and (3) did not show plaintiff in error was present in court throughout the trial and when the verdict of the jury was returned. Other objections to the sufficiency of the record we do not regard of sufficient importance to require specific mention.

[1] At the February term of this court a diminution of the record was suggested by the Attorney General, and on his motion a writ of certiorari was issued to the clerk of the circuit court of Johnson county commanding him to send up a true and complete transcript. Notice was thereupon given plaintiff in error and his counsel by the people that at the March term, 1911, of the Johnson county circuit court the people would move the court to redocket the cause and amend the record certified by the clerk, so as to make it speak the truth. Such proceedings were had at said March term that the court found that in the record as written up by the clerk there were many errors, mistakes, and misprisions made by him, and the record was amended. As amended, the objections made to it as originally certified are obviated. Counsel for plaintiff in error contend that the court erred in amending the record, for the reason, it is claimed, there was no note, memorandum, or memorial paper in the files of the case or upon the records of the court from which the amendment was authorized. There is no basis for this claim, unless it be with reference to the amendment showing that the jury were sworn. We do not find that any note, memorandum, or memorial paper was offered in aid of this amendment. The record does sufficiently show a jury was impaneled, the names of the men composing it, that the case was tried before said jury, beginning August 17th, and the verdict was returned August 20th. The record does not show, and it is not asserted by counsel, that the jury were not, in fact, sworn to try the case; but it is not affirmatively shown by the record that the jury were sworn. No such question was raised when the jury was impaneled, nor at any time during the trial; nor was this question raised by the motion for a new trial, which was in writing and specifically assigned the grounds upon which a new trial was asked. Even if the amendment of the record in this respect was unauthorized-and as to this question the record must stand as originally written up by the clerk-this assignment of error cannot be sustained.

[2] Some things must affirmaively appear from the record, such as the return of the indictment, the presence of the accused at the trial, and when judgment is pronounced upon the verdict against him; but where, as here, the court had jurisdiction, the defendant was present and announced himself ready for trial, and thereupon a jury was called, impaneled, and the cause tried without objection, it will be presumed the jury were sworn, unless the contrary is shown. The burden is upon the party alleging the error to sustain it....