People v. Caldwell, Gen. No. 50420

• Decision Date: 12 January 1967
• Docket Number: Gen. No. 50420
• Citation: 79 Ill.App.2d 273,224 N.E.2d 634
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. C. B. CALDWELL, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 634

224 N.E.2d 634

79 Ill.App.2d 273

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. C. B. CALDWELL, Defendant-Appellant.

Gen. No. 50420.

Appellate Court of Illinois, First District, Third Division.

Jan. 12, 1967.

Gerald W. Getty, Public Defender, Marshall A. Patner, Frederick F. Cohn, James J. Doherty, Asst. Public Defenders, Chicago, for appellant.

Daniel P. Ward, State's Atty., Elmer C. Kissane, Albert J. Armonda, Asst. State's Attys., Chicago, for appellee.

DEMPSEY, Justice.

A jury found the defendant, C. B. Caldwell, guilty of murder and the trial judge sentenced him to the penitentiary for a term of fifty to one hundred years.

He was indicted for the murder of Bessie Mae Woods in Cook County, Illinois, and he contends that either his conviction should be reversed because the indictment was defective in not specifying the place of the offense, or that he should be given a new trial because (1) the court failed to give a manslaughter instruction; (2) the prosecutor's closing argument was prejudicial; (3) his confession was obtained under circumstances which violated his constitutional rights, and (4) his confession was allowed to be taken into the jury room. In the alternative he requests this court to reduce his sentence.

Mrs. Woods lived with her husband in an apartment in Chicago. Caldwell, who had known Mrs. Woods all his life, lived in a room adjoining the Woods' apartment. His room was separated from their apartment by a connecting bathroom. In the middle of the afternoon of April 24, 1964, he was talking to Mrs. Woods in her kitchen. Her uncle, William O'Neil, an elderly man who walked with a cane, was visiting her and was sitting in the living room. O'Neil heard his niece and Caldwell arguing about two dollars. Mrs. Woods said she 'didn't have no two dollars.' She kept repeating this and, upon hearing a scuffle, O'Neil went to the kitchen door. Caldwell was holding his niece by the collar and O'Neil told him to stop what he was doing and to get out.

Caldwell went to his own room but came back in a minute or two with a gun in his hand and headed for the kitchen. O'Neil tried to stop him but he shoved O'Neil aside. O'Neil fell over a chair; before he could get up he heard Caldwell follow his niece out the back door. A moment later he heard a shot. He found his niece lying in the back areaway. Caldwell had disappeared.

About 5:00 p.m. on the same afternoon a Chicago Policeman, dressed in plain clothes, was sitting in his auto in front of the Woods' apartment. He observed a man walking on the opposite side of the street. The man stopped and then walked on. A boy called out, 'Hey, Sonny Boy.' The officer, knowing that this was Caldwell's nickname, got out of his car, identified himself as a police officer and, with his gun pointed at the man, started across the street. The man, Caldwell, put his hands in the air. He was searched and a .22 caliber revolver with two expelled bullet casings and five unexpended cartridges was found in his pocket. He was disarmed, handcuffed and placed in the automobile.

Before taking Caldwell to the police station the officer asked him for his side of the story. Caldwell told him that the argument with Mrs. Woods was carried over from the night before and was about another boy friend; that he and 'Uncle Neal' (William O'Neil) also argued and the uncle hit him with a stick. He walked to his room, got his gun and returned. He pushed O'Neil aside and shouted into the kitchen, 'You started this whole thing.' At this Mrs. Woods ran out of the back door and he chased her. He caught up to her at the bottom of the steps, 'grabbed her collar and she started to struggle and that's when I let her have it.'

Caldwell said that he told some boys who were in front of the building that he had shot 'Bessie' and for them to call the police. He explained that he was returning to give himself up when the officer arrested him.

At the station Caldwell was not placed behind bars but his handcuffs were attached to a radiator while the officer went to the hospital to speak to Mrs. Woods. He was unable to talk to her. She had been shot in the left temple and was unconscious. She died three weeks later. About an hour and a half had elapsed from the time the officer left the station until he returned. A typed statement was then taken from Caldwell which he signed. This statement was substantially the same as the oral one.

At the trial Caldwell testified that he and Mrs. Woods did not argue or scuffle; that O'Neil came into the kitchen with a cane in his right hand and a knife in his left and, without saying a word, hit Caldwell with the cane and put the knife to his neck. Mrs. Woods exclaimed, 'No, Uncle William$ Don't cut him.' O'Neil replied, 'He ain't got no business in here' and told him to get out. Caldwell left and when he came back O'Neil stepped toward him. They had a few words and Mrs. Woods screamed and ran out of the back door. He followed her into the yard and asked why she was running. She replied she was afraid of guns. As they were walking back to the house she grabbed his hands, the gun fired and she fell. He said he did not fire the gun, that it went off when she snatched it and that he did not aim it at her or intend to shoot her. When he saw that she was bleeding he became frightened and ran away through an alley.

There is no merit to the defendant's contention that the indictment was defective. A long line of cases, starting with People v. Petropoulos, 59 Ill.App.2d 298, 208 N.E.2d 323 (1965), has held that an indictment which alleges that an offense occurred in a certain county complies with the statutory requirements (Ill.Rev.Stat., 1963, ch. 38, sec. 111--3(a)(4)); People v. Zeravich, 64 Ill.App.2d 150, 212 N.E.2d 282 (1965); People v. Blanchette, 33 Ill.2d 527, 212 N.E.2d 97 (1965); People v. Petropoulos, 34 Ill.2d 179, 214 N.E.2d 765 (1966).

The jury was not given a manslaughter instruction and the defendant protests that this was error. On the first day of the trial, during a recess at the close of the State's case, the defendant's counsel inquired about the propriety of such an instruction and the trial judge replied that, as of that time, he would refuse to give an instruction on manslaughter. At the termination of all the testimony, while going over the instructions, the defense counsel asked that the record show that he proposed to offer a manslaughter instruction but that it would be useless. The judge recalled the discussion of the previous day and observed that an instruction had not been tendered. The defendant's counsel said that he would prepare an instruction for the record, but none was ever offered.

A trial judge has no duty to give instructions where a defendant does not tender them and the defendant cannot now fairly object that none was given. People v. Carvin, 20 Ill.2d 32, 169 N.E.2d 260 (1960); People v. Baker, 8 Ill.2d 522, 134 N.E.2d 786 (1956); People v. Weisberg, 396 Ill. 412, 71 N.E.2d 671 (1947). Moreover, if a manslaughter instruction had been refused it would not have been error. The theory of the defense was that Mrs. Woods came to her death as a result of an accident. In his opening statement the defendant's attorney said that the evidence would disclose that the shooting 'was an accidental act.' The defendant testified that the shooting was accidental; his attorney argued to the jury that it was accidental and at the defendant's request the court instructed the jury on the theory of accident. If the State's evidence was believed the defendant was guilty of murder; if the defendant's testimony was believed Mrs. Woods' death was accidental. There was no evidence that the killing was manslaughter--either voluntary or involuntary--and it would have been error to have given instructions on that subject. People v. Burnett, 27 Ill.2d 510, 190 N.E.2d 338 (1963); People v. Wheeler, 57 Ill.App.2d 452, 206 N.E.2d 727 (1965).

One of the two remarks of the prosecutor which the defendant protests as being inflammatory occurred in the opening argument when the prosecutor said that Caldwell's initials 'C.B.' meant 'cold blooded.' The prosecutor stated that Caldwell did not go after O'Neil with whom he testified he had quarreled, but that he pursued Mrs. Woods, grabbed her by the collar and raised his gun to fire. He then added: 'Well, that does one thing for us. It tells us what 'C.B.' means in front of Caldwell--'cold blooded. " We see nothing wrong in this characterization. The purport of this argument was that Caldwell was not provoked with O'Neil; that Mrs. Woods was his target; that she knew it and fled, and that the killing was deliberate. The argument was supported by evidence and the characterization was a fair comment on the evidence. It is not improper for a prosecuting attorney to reflect unfavorably on a defendant or to comment on his actions if based on pertinent evidence. People v. Miller, 13 Ill.2d 84, 148 N.E.2d 455 (1958).

The second remark occurred in the final argument of the prosecutor. He said that according to Caldwell's statement Caldwell was choking Mrs. Woods while he pointed the gun at her. The defendant objected. The court overruled the objection saying, 'There is evidence in the statement that he said, 'I grabbed her by the collar. " The prosecutor was in error when he said Caldwell admitted choking Mrs. Woods, but the error was not a grievous one and the trial judge, although he did not sustain the objection, immediately corrected the prosecutor's error by quoting the exact language used by Caldwell.

It is contended that the defendant's confession was taken under circumstances which violated his constitutional rights and that its admission into evidence over objection constituted reversible error. The circumstances enumerated are: (a) the defendant was handcuffed to a radiator prior to the confession; (b) the provisions of the 'Rights of Accused' (Ill.Rev.Stat., 1963, ch. 38, article 103,...