People v. Brown

• Decision Date: 30 November 1962
• Docket Number: No. 36457,36457
• Citation: 26 Ill.2d 308,186 N.E.2d 321
• Parties: The PEOPLE of the State of Illinois, Defendant in Error. v. Fred BROWN, Plaintiff in Error.
• Court: Illinois Supreme Court

Page 321

186 N.E.2d 321

26 Ill.2d 308

The PEOPLE of the State of Illinois, Defendant in Error. v. Fred BROWN, Plaintiff in Error.

No. 36457.

Supreme Court of Illinois.

Nov. 30, 1962.

Robert H. Aronson, Chicago, for plaintiff in error.

William G. Clark, Atty. Gen., Springfield, and Daniel P. Ward, State's Atty., Chicago (Fred G. Leach and E. Michael O'Brien, Asst. Attys. Gen., and Dean H. Bilton and Rudolph L. Janega, Asst. State's Attys., of counsel), for defendant in error.

DAILY, Justice.

An indictment returned to the criminal court of Cook County jointly charged Fred Brown, Leonard McGarry, James Washington and Charles Gunn with the murder of Richard Hunter, who was shot to death in the course of an attempted robbery. Washington and McGarry pleaded guilty to the crime, whereas Brown and Gunn, who waived a jury, were found guilty after a bench trial and each was sentenced to the penitentiary for a term of 14 years. This writ of error is prosecuted by Brown, to whom we shall refer as defendant, and as grounds for reversal he contends that he was not proved guilty beyond a reasonable doubt, that he had withdrawn from the robbery plan in such a manner as to avoid liability for its consequences, and that he was denied a fair and impartial trial due to the incompetency of his appointed ounsel and to the admission of evidence relating to another crime.

The victim of the homicide was among those present on July 12, 1959, at a party being held in a basement apartment of a building located at 4601 S. Michigan Avenue in Chicago. Gambling seems to have been the principal activity at the 'party,' while the 'apartment' appears to have been in the nature of an unlicensed tavern. Around 3:30 A.M. four men, later identified as defendant and those indicted with him, entered the premises. Washington and McGarry produced guns, under circumstances later to be detailed, announced that it was a stickup and ordered those present to lie on the floor. Decedent, however, jumped on McGarry's back and was shot by Washington, the fatal bullet first passing through McGarry's body. In the confusion the robbers were able to flee from the premises.

Defendant and Washington were apprehended in Nashville, Tennessee, and were delivered into the custody of Chicago police on August 17, 1959. At this time defendant made several oral statements and signed a written statement wherein he consistently acknowledged that he and his codefendants had first met in a tavern in South Chicago on the night in question and that they had driven to the Michigan Avenue address in furtherance of an express plan to rob those at the party. In addition, he consistently stated at all times prior to trial that he had looked through a window when they arrived at the apartment, that he then advised his companions he was not going in because there were too many people, and that he then took a taxi back to South Chicago. In his written statement he said he next saw his co-defendants an hour later in South Chicago, that McGarry was then suffering from a gunshot wound in the back, and that McGarry had been taken to defendant's room and ministered to.

At the trial, however, defendant deviated materially from his prior statements and testified there had been no plan or conversation relating to a robbery and that he had gotten into the car with the others merely for the purpose of going to the party. He stated that just as they reached the entrance of the building McGarry announced he was 'going to make him some money,' whereupon defendant said he didn't want any part of it and took a taxi back to South Chicago.

The chief witness for the prosecution was defendant's co-conspirator, Leonard McGarry. Although completely irreconcilable with his subsequent testimony, McGarry also testified there had been no preconceived plan or intention of committing a robbery and stated he and his companious had set out for the apartment solely for the purpose of gambling. Gunn, it was stated, had lost money at the party earlier and wanted to win it back. According to McGarry, he and his three companions went into the apartment and found about 25 persons present. He said that Gunn walked in first and went to the bar, that Washington remained behind at the door, and that he and the defendant walked to the middle of the room at a point four to five feet equidistant from Gunn and Washington. One Jimmy Jones, who had driven the men to the apartment, remained outside in the car.

McGarry said that after looking around for a moment he remarked there were 'too many people,' and that defendant thereupon replied: 'Yes, forget it, let's go.' At this, to use McGarry's words, 'most of us turned to go,' but defendant asked him to wait and walked across the floor to a washroom. Immediately after defendant went into the other room, still according to McGarry, Washington pulled his gun, shouting as he did so, and when people started running about McGarry drew his pistol, fired a shot into the ceiling and announced that it was a 'stickup.' The witness said he then valuted over the bar and demanded the money there and that defendant, 'looking surprised,' came out of the rest room at this time. Several patrons attempted to seize defendant but, McGarry testified, defendant fought them off and ran out the front door shouting that 'one had got away.' It was following this that Hunter was fatally shot as he grappled with McGarry. Concluding his testimony, McGarry stated that he staggered to the car, that he lost consciousness, and that his next recollection was being taken to defendant's house.

Fletcher Henderson, who was present at the party, appeared as a witness for the prosecution and pointed out defendant as one of the robbers. However, it appears he had been unable to identify defendant when called upon to do so on two occasions before the trial. Another prosecution witness, Helen Wilson, who was tending bar in the apartment, testified that defendant had had a drink at the bar, prior to the shooting, and that she had not seen him after the melee occurred. Gunn, who was jointly tried with defendant, testified on cross-examination that he was the last to arrive at the apartment where the murder took place, that defendant, Washington and McGarry were already present in the front room, and that he, the witness, had protested when Washington pulled a gun.

Defendant's initial contention that he is not guilty of murder because he had abandoned and withdrawn from the criminal enterprise of his companions must fail in two respects. We held in People v. Rybka, 16 Ill.2d 394, 406, 158 N.E.2d 17, 23, that it is 'the communication of intent to withdraw and not the naked fact of withdrawal that determines whether one who advised, encouraged or incited another to commit a crime is to be released from liability as an accessory before the fact.' To this need may be added the further requirement that the withdrawal must be timely, that is to say it must be 'such as to give his coconspirators a reasonable opportunity, if they desire, to follow his example and refrain from further action before the act is committed,' and it must be possible for the trier of fact 'to say that the accused had wholly and effectively detached himself from the criminal enterprise before the act with which he is charged is in the process of consummation or has become so inevitable that it cannot reasonably be stayed.' (People v. Nichols, 230 N.Y. 221, 129 N.E. 883, 886; also see: Galan v. State, 44 Ohio App. 192, 184 N.E. 40.) Stated otherwise, withdrawal may not be effectively made from a felony murder when the 'transaction...