People v. Cavaness

• Court: Illinois Supreme Court
• Writing for the Court: SOLFISBURG
• Citation: People v. Cavaness, 171 N.E.2d 56, 21 Ill.2d 46 (Ill. 1960)
• Decision Date: 28 November 1960
• Docket Number: No. 35946,35946
• Parties: PEOPLE of the State of Illinois, Defendant in Error, v. Quinten James CAVANESS, Plaintiff in Error.

Page 56

171 N.E.2d 56

21 Ill.2d 46

PEOPLE of the State of Illinois, Defendant in Error, v. Quinten James CAVANESS, Plaintiff in Error.

No. 35946.

Supreme Court of Illinois.

Nov. 28, 1960.

Rehearing Denied Jan. 18, 1961.

Harold N. Lingle, Anna, and Gerald H. Johnson, Cape Girardeau, Mo., for plaintiff in error.

William L. Guild, Atty. Gen., John Paul Davis, State's Atty., of Union County, Jonesboro (Fred G. Leach, Asst. Atty. Gen., and Ford L. Rendleman, Anna, of counsel), for defendant in error.

SOLFISBURG, Justice.

The defendant, Quinten James Cavaness, was indicted on a charge of assault with intent to murder Ferdinand Sweitzer. Trial was held before a jury, which returned a verdict to guilty. After motions of defendant for a new trial or in the alternative for arrest of judgment were denied, the court imposed judgment and sentence of not less than four years nor more than ten years in the penitentiary. This case is before us on writ of error.

The defendant contends that the trial judge was guilty of prejudicial conduct; that the court erred in admitting certain exhibits over defendant's objection; that the trial court erred in failing to instruct the jury as to the elements of the offense charged; that the trial court erred in giving certain instruction for the People and in refusing to give an instruction tendered by defendant; that the defendant's age was not proved, and that the defendant was not proved guilty beyond a reasonable doubt.

Defendant and Sweitzer owned adjoining farms. Hogs belonging to Sweitzer strayed onto defendant's farm. Defendant placed a gun in his car, drove to a nearby village seeking Sweitzer, found him and demanded that the hogs be confined. Sweitzer agreed to do so, there was a vituperative exchange, after which Sweitzer drove rapidly to his farm, with defendant following him closely. At the farm Sweitzer entered his brother's house while defendant stood in the road. Sweitzer came out of the house, picked up a crowbar, advanced toward defendant and according to defendant's testimony struck the defendant with the crowbar. The defendant and Sweitzer then wrestled for possession of the crowbar. The defendant gained it, whereupon Sweitzer took a ball bat from one of his nieces who were watching the fracas. Defendant then, after returning to his auto, got his gun and chased Sweitzer around the house, firing two shots, one of which struck Sweitzer in the back, lodging near his heart.

Defendant drove to his home where he was arrested by police officers. They asked defendant to produce the gun; he told them where it was and they picked it up.

Although we have merely given a synopsis of the evidence, a minute scrutiny of the entire record convinces us that the defendant was proved guilty beyond a reasonable doubt. We cannot say, after consideration of all the evidence, that it was so unreasonable, improbable or unsatisfactory as to justify our reversing the conviction; therefore, we will look to the other assignments of error.

The defendant contends that the trial court was guilty of prejudicial conduct of such character as to deprive the defendant of a fair and impartial trial. The remarks to which the defendant takes exception were three in number, during the course of a trial which produced testimony filling 109 pages of the record. The trial judge asked the deputy sheriff the following question: 'Now is that pistol and those cartridges in the same condition that they were the day Mr. Cavaness gave them to you?' We fail to see how such a remark could even remotely be construed to be prejudicial and we observe that defendant's counsel made no objection at the time the trial judge put the question. Subsequently during the trial the prosecuting witness Sweitzer burst forth during the testimony of the defendant with this remark: 'Let him tell it. I want to hear it.' The court then admonished Sweitzer with the statement 'Now you just keep still Mr. Sweitzer.' Shortly thereafter the defendant, for what reason is not clear from the record, while on the stand blurted out the following: 'I do not see anything so damn funny about this. If you have got a joke let's have it. I feel pretty bad.' The court then stated: 'Now just a minute Mr. Cavaness. You are getting ready to be in contempt of court. Let's put this in the record. We will have no more of that please.' The defendant's counsel did not, at the time, object to either of these statements of the court. We think that the alleged prejudicial conduct is not now open to review. 15 I.L.P. Criminal Law §§ 561, 861, pp. 118, 327. More important, however, is the fact that we do not believe the question or remarks by the trial judge constituted prejudicial conduct. The court properly admonished Sweitzer, and also warned the defendant of a possible contempt, and his statements did not constitute either 'constant interference,' as was present in the People v. McMullen, 300 Ill. 383, 133 N.E. 328, nor 'obvious interference,' as found in the People v. Judycki, 302 Ill. 143, 134 N.E. 134. Neither would the remarks of the trial judge bring this case within the purview of the People v. Lurie, 276 Ill. 630, 115 N.E. 130, because the trial judge did not, in either of the instances complained of, indicate in the slightest degree that he thought the defendant was guilty. The mere fact that the trial court suggested a contempt charge to the defendant and merely admonished the prosecuting witness does not indicate any prejudice. The remarke quite obviously were of varying degrees of impropriety and brought forth different treatment by the trial judge. In this respect we think the trial judge displayed proper judicial decorum and temperament, and the defendant was not prejudiced.

The defendant contends that the trial court erred in admitting a firearm and certain cartridges in evidence over defendant's objection. We have held on numerous occasions that a weapon found in the dwelling of the defendant at the time of his arrest may be admissible to show that he...