People v. Dillard

• Decision Date: 02 June 1972
• Docket Number: No. 70--99,70--99
• Citation: 284 N.E.2d 490,5 Ill.App.3d 896
• Parties: PEOPLE of the State of Illinois, Appellee, v. Darrell DILLARD and Hubert McCray, Appellants.
• Court: United States Appellate Court of Illinois

Page 490

284 N.E.2d 490

5 Ill.App.3d 896

PEOPLE of the State of Illinois, Appellee, v. Darrell DILLARD and Hubert McCray, Appellants.

No. 70--99.

Appellate Court of Illinois, Fifth District.

June 2, 1972.

Hillebrand, Cook & Stiehl, East St. Louis, Robert J. Hillebrand, East St. Louis, of counsel, for appellants.

Kenneth L. Gillis, Chicago, for appellant Hubert McCray.

Robert H. Rice, State's Atty., Belleville, Ill., Kenneth J. Juen, Belleville, of counsel, for appellee.

CREBS, Justice.

In a bench trial in the Circuit Court of St. Clair County defendants, Hubert McCray and Darrell Dillard, were convicted of murder and were sentenced to the penitentiary for terms of not less than 14 nor more than 50 years. Their separate appeals have been consolidated here for opinion. The principal contention in each appeal is that the homicide was committed in self defense and that the state failed to overcome such evidence by proof beyond a reasonable doubt.

Edward Brock, a gas station attendant, was shot and killed shortly after 10:00 o'clock in the evening on May 9, 1969, in East St. Louis. A fellow employee, John Warzala, testified that that evening, as was customary, he and Brock secured the station, turned off the lights and started to go home. As they walked to their cars at the side of the station Brock said he was going to check the store room first and Warzala noticed that Brock was then carrying a gun and that he shifted what looked to be a black .22 caliber gun from his left to his right hand. A few seconds later Warzala heard a number of shots. He saw no one nor did he hear anyone say anything prior to the shots. He stated that he was so scared he took off and ran down the street where he hailed a passing squad car. Two police officers testified that as they were cruising past the station they too heard the shots and saw Warzala running and calling for help. They parked their car, ran back towards the station, and, from about 60 or 65 yards, one of them fired his shotgun once at what he thought to be men running. Brock was found in back of the station in a sitting position leaning against some pipes and bleeding profusely. He was taken to the hospital, but he died before regaining consciousness.

Medical testimony revealed that Brock had been shot four times and that his death was caused by a bullet wound in his abdomen which severed his left iliac artery. A second bullet had grazed his forehead, a third had entered his right arm and a fourth had entered his left cheek. Ballistics testimony established that the bullet recovered from Brock's abdomen was fired from defendant, McCray's .38 caliber gun. Of three bullets recovered, one was identified as coming from defendant Dillard's .22 caliber gun. One was so mutilated it could not be identified other than as coming from a .22 caliber gun, and one was admitted to have come from Brock's gun and to have been recovered from Dillard's arm.

The defendants and another boy, Gregory Anthony, were arrested later that night at a hospital where they had gone for treatment of two gunshot wounds incurred by defendant, Dillard, one in the left shoulder and one in the right elbow. When questioned, all three told the same story, that Dillard had been shot by an unknown assailant on his way home from school and that he had called McCray and Anthony to take him to the hospital. Locked in the trunk of McCray's car police found both guns of the defendants and also decedent's gun. McCray's gun contained four spent shells, Dillard's six, and the decedent's one.

Gregory Anthony was not indicted but was presented as an eye witness by the State without vouching for his veracity. He testified that he was 22 years of age and a student at SIU in East St. Louis. He and the defendants had been friends for a number of years. On the night of the shooting they went to Dillard's house at about 8:00 P.M. and while sitting and talking they drank a six pack of beer. A little before 10:00 P.M. they picked up another six pack at a store and drank five of these while riding in McCray's car. At the suggestion of McCray they stopped across from the gas station in question to relieve themselves. The station was dark and apparently closed so they went in the back by the alley between a fence and a large dumpster where they could not be seen. While they were urinating all of sudden a shot was fired at them without any call or warning. He stated that Dillard then pulled out his gun and shot and that Brock grabbed Dillard and pulled him to the ground. They were struggling and when Dillard called for help, he and McCray tried to pull them apart. He did not know how many shots were fired but finally he and McCray ran back to their car and Dillard followed. They drove a short distance away and stopped to see how bad Dillard was hurt. Then they went to a hospital, parked in the front of parking lot and went to the emergency room. Before, following Dillard into the hospital Anthony said he put the guns in the trunk of the car. He admitted that both he and the defendants told the police that Dillard had called them to take him to the hospital, and that they did not tell the truth about being involved in the shooting because they did not think the police would believe what had happened.

Decedent's wife also testified for the State. She identified her husband's gun and stated that he always carried it. On this particular day she remembered she had taken it from the dresser and handed it to him before he left for work and that it was fully loaded.

Defendants presented a number of witnesses who stated that the general reputation of each of them for truth and veracity was good, that they were peaceful and law abiding citizens who had never before been in any trouble. Defendant Dillard testified that he was 22 years old, that he had received an honorable discharge from the army, that he had never before been accused of or been arrested for anything, and that he was in a teacher training program at SIU. He stated that the situation in East St. Louis was bad and tense at this time, that there were many shootings and beatings, and that he himself had been shot at once before while walking down the street. He said he bought the gun the last of March to protect himself and that he carried it all the time. It had five cartridges in it when he bought it, he never purchased any more, and at the time of the shooting it had only three live cartridges as he had shot it twice to make sure it would work. His testimony was essentially the same as Anthony's relative to their activities prior to the shooting. As they were urinating a shot was fired wholly without warning and it hit him in the arm. He said he spun around, pulled his own gun and fired once. Brock then grabbed him and they wrestled and he got shot again in the shoulder and his own gun went off twice more. McCray and Anthony tried to help, but they finally ran and he did too, after picking up Brock's gun from the ground because he was afraid Brock might pick it up and shoot him again. At the hospital he admitted they made up the story about being shot by a sniper because they did not think the police would believe the true story.

McCray testified that he had recently received his honorable discharge from the army, that he had never before been accused of or arrested for anything, that he was working to get money to go back to school in the fall. He stated that he bought his gun on May 8th because he had been told how rough it was in East St. Louis and he wanted it for protection. He too had never bought any additional cartridges. He had test fired the gun three times, and on the night of the shooting it had only one live cartridge in the chamber. He stated that while they were urinating a shot came from nowhere without warning, and when Brock and Dillard were struggling he tried to knock the gun out of Brock's hand and that is when it went off. He said he was scared and that he and McCray tried to help pull Brock and Dillard apart but when he heard more shots he ran back to the car. He stated that he and Anthony put the guns in the trunk and that they made up Dillard's story because they were afraid they would not be believed.

The State contends that the above facts prove defendants guilty of committing a felony murder which was the theory upon which they were indicted, tried and convicted. It is argued that Dillard admittedly took Brock's gun and that that in itself constituted robbery, and that further evidence of robbery was the fact that after the shooting Willard must have rifled Brock's pockets because a key and pocket knife belonging to Brock were subsequently found on the ground within four inches of Brock's body. In the State's brief, it is stated that '(T)his clearly substantiates the State's theory of why they came on...