People v. Borella
| Decision Date | 14 April 1924 |
| Docket Number | No. 15920.,15920. |
| Citation | 143 N.E. 471,312 Ill. 34 |
| Parties | PEOPLE v. BORELLA. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, Perry County; Louis Bernreuter, Judge.
Charles Borella was convicted of murder, and brings error.
Affirmed.
M. C. Cook and Judson E. Harriss, both of Du Quoin (L. A. Cranston, of Du Quoin, of counsel), for plaintiff in error.
Edward J. Brundage, Atty. Gen., Judson E. Harriss, State's Atty., of Du Quoin, and George C. Dixon, of Dixon, for the People.
Plaintiff in error was tried and convicted in the circuit court of Perry county of the crime of murder of John Giles. His punishment was fixed at imprisonment in the penitentiary for the term of his natural life. He brings the cause here for review, assigning as error the admission of the dying declaration of the deceased and certain instructions given by the court on behalf of the people.
The defense was self-defense. Both plaintiff in error and the deceased were coal miners, residing in the city of Du Quoin. On the afternoon of April 14, 1923, they met in what was known as Eagle's Hall, on West Main street, in the city of Du Quoin; both being members of the lodge that met there. Some discussion arose among the members concerning two candidates for mayor of the city, and Giles struck plaintiff in error and knocked him down over some empty boxes, and while he was sitting on the boxes struck him again. None of the witnesses, aside from plaintiff in error, state what was said between him and Giles at the time the blows were struck. Plaintiff in error testified that Giles called him a liar, to which he replied, ‘No, I ain't no liar,’ and that Giles struck him. It appears that thereupon Giles left the building. Plaintiff in error left soon after and went to the home of his sister, where he was living, and washed the blood off his face, took his revolver from a dresser drawer, and went down town to the pool room of one Lewis, situated across the street from Eagle's Hall. He purchased a cigar there and want to the front of the pool hall and stood in the doorway until Giles returned, some 25 or 30 minutes later. It appears that, after the difficulty between these men in Eagle's Hall, Giles, with some friends, went in an automobile to a dance hall and soft drink parlor known as the White House, northwest of the city, and, after being there about three-quarters of an hour, five men, including Giles, returned to town in the automobile of the witness James Martin. Two of the men got out of the automobile and went to their homes before the party reached the business part of the city, and Martin, with the witness Howard Wheatley and Giles, drove on the pool hall. The car was parked in front of the pool hall, and the occupants all left it and started to cross the sidewalk to the pool room. Borella was standing in the doorway and in the manner detailed by eyewitnesses shot Giles.
The testimony of the attending physician is that deceased received one wound through the right elbow, just above the joint, a wound in the right chest one inch below the right nipple, penetrating the chest cavity, and two bullet wounds in the right side; that he found five bullet wounds on the body of the deceased; that he died April 17, 1923, three days after the shooting.
In order to understand clearly the testimony of the witnesses concerning the shooting it is necessary to describe the location. Lewis' pool hall is located on West Main street, about the middle of the block, west of the cross-street known as Chestnut street. Main street extends east and west in the city of Du Quoin and Chestnut street north and south. The street to the west of Lewis' pool room extends north and south and is know, as Walnut street. In approaching the pool room, the deceased, with his two companions, traveled east on Main street from Walnut street. The pool room is on the north side of Main street, and, in order to park the car in front of it, it was necessary, according to the testimony of the witnesses, to drive east to a traffic post at the intersection of Main and Chestnut streets and turn around that post. After doing so, Martin drove back and parked his car in front of the pool room, on the north side of Main street. The width of the sidewalk at this point is variously estimated by witnesses to be from 16 to 20 feet. The front door of the pool room is in a recess in the building 4 or 5 feet in depth, across the front of which had been constructed a frame as a screen, even with the sidewalk. In the middle of this was a doorway, estimated to be from 3 1/2 to 4 feet in width, on which a screen door was hung in the summer, though no screen door was in place there at that time. Borella was standing leaning against the west door post of the screen doorway, with his arm extended across the doorway, his hand resting on the east door post.
Upon parking the car, Martin, Wheatley, and Giles alighted, and Giles started into the building. Up to this point there appears to be no dispute as to what occurred. According to the testimony of Wheatley, where Giles started into the pool room, he (Wheatley) was on the pavement opposite the pool room door. Borella was leaning against the door post, with his left hand against the other side, and Giles started to go under his arm, when some words were spoken which the witness could not understand; that Giles backed off toward the east, and Borella pulled his gun from his shirt or belt and began firing, Giles backing away from him; that Borella fired five shots; that when the shooting began Giles backed up as far to the east as Geiger's bakery shop which was the second door, a bank being between the pool room and the bakery; that after the last shot Giles got off the sidewalk and went around a car standing on Main street. Witness stated that he did not notice what Borella did after that; that Giles had nothing in his hand at the time of the shooting. This witness testified that Giles weighed about 170 pounds and was a smaller man than Borella.
Martin testified that when they alighted from the car he followed Giles and Wheatley toward the pool room door. Borella was standing with his arm across the door and said something which witness could not hear clearly; that Giles also spoke, but witness did not understand what was said; that Giles started into the pool room, under Borella's arm; that the witness was at that time standing in front of Borella on the sidewalk; that Borella ran his hand down insidehis shirt; that Giles had not done anything or made any motion that the witness saw before Borella reached down into his shirt; that at that time the witness was within 6 feet of them; that he, upon seeing Borella reach into his shirt, turned and went into Schleper's store, next door west; that as soon as he tot into the store he heard five shots, and came out and saw Borella standing just a little east of the pool room door, toward the bank; that Giles at that time was just coming up onto the sidewalk from around an automobile; that Giles went into the pool room, as did witness; that Giles stayed about two minutes, and then came out with Wheatley and witness, and was put into witness' car and taken away; that as Giles went into the pool room Borella was standing in front of the pool room door, with his pistol in his hand. This witness stated that Giles had no weapon that he knew of.
Pete Neira testified that he was standing in front of the pool room, opposite the pool room door, at the edge of the pavement, with his left arm on a hitching rail, talking to two friends; that he did not notice Giles approaching the pool room; that the first thing he knew of the trouble was the shooting; that he heard no argument between these parties and he heard five shots; that as soon as the shooting began he ran back of a car that was parked there and did not see who was shooting, but after the shooting he saw Borella and Giles; that the former was standing to the right of the witness and about 6 feet north of him; that he had a revolver in his hand, by the side of his right leg; that Giles backed away from Borella to Geiger's bakery, then backed south across the sidewalk and walked back of a car standing there and then back across the sidewalk into the pool room; that in about three minutes he came out with two friends, who helped him into the car; that he was holding his hand on his right side; that during this time Borella was standing on the sidewalk holding his revolver in his hand until his brother came and took him away.
Lewis, the proprietor of the pool room, testified that he saw Borella come into the pool room and buy a cigar and go out and stand in the front door; that he was there about half an hour before the shooting took place; that when he heard the first shot he looked to the front of the building and saw Borella, but did not see Giles and saw the fire from the gun; that it looked as though Borella was shooting southeast; that, when shooting, Borella was standing 4 or 5 feet from the doorway.
Noah Stoker, called for the defense, testified that he was leaning against the building in front of the pool room about 12 feet west of the door; that Borella was standing in the dorway; that he saw Giles have hold of Borella's coat, pushing him back onto the walk, about 12 or 15 feet southwest from the door; that Giles was moving his arm as though he was going to strike Borella; that when Borella drew his gun Giles grabbed for it; that witness saw Borella's gun and heard the shots fired, and that at the time the fifth shot was fired Giles was backing up toward the State Bank, with his hands down. This witness testified that he did not hear anything said; that when he first saw these parties Giles had hold of Borella's coat; that that was the position they were in at the time of the first shot; that after the first shot Giles let loose of Borella's coat and started backing away; that Giles had nothing in his hand and was still backing away when the rest...
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