People v. Duncan

• Decision Date: 16 December 1924
• Docket Number: No. 16221.,16221.
• Citation: 145 N.E. 810,315 Ill. 106
• Parties: PEOPLE v. DUNCAN.
• Court: Illinois Supreme Court

315 Ill. 106

145 N.E. 810

PEOPLE

v.DUNCAN.

No. 16221.

Supreme Court of Illinois.

Dec. 16, 1924.

Error to Circuit Court, Peoria County; T. N. Green, Judge.

Clyde Duncan was convicted of murder, and he brings error.

Reversed and remanded.

Farmer, J., dissenting.

C. E. McUemar, of Peoria, and W. S. Jewell, of Lewistown, for plaintiff in error.

Edward J. Brundage, Atty. Gen., Ernest J. Galbraith, State's Atty., of Peoria, Edward C. Fitch, Asst. Atty. Gen., and Francis C. Vonachen, of Peoria, for the People.

DUNN, J.

Clyde Duncan was convicted of murder and prosecutes a writ of error to reverse the judgment.

Duncan kept a saloon at the corner of Washington and Bridge streets, in the city of Peoria, in which the homicide occurred on Friday evening, September 28, 1923, about 9:30 o'clock. About that time the deceased, John Grant Powell, in company with two associates, entered the saloon and immediately began cursing and abusing Duncan, who was standing behind the bar with his barkeeper, William McKinney. Duncan answered in kind, and volleys of profanity and obscenity were exchanged between the two participants. It appears that some of the frequenters of the place who were witnesses at the trial regarded the exchange of ribaldry as jocular in its character, but if there was anything jocose about it the quality soon changed. Powell wanted to buy a drink for the house, but Duncan refused to sell him a drink and ordered him out of the place, telling him to go out and stay out. Powell told Duncan if he would come out from behind the bar he would whip him in his own saloon. Powell's two companions took hold of him and endeavoredto induce him to leave. They got him as far as the door, when he broke away from them and went back to the bar. In the meantime Duncan, while these events were occurring, had turned around and taken from a drawer by the cash register, immediately behind the bar, a revolver, which he held in his hand hanging at his side. When Powell broke loose from his companions at the door, he came back in front of the bar opposite Duncan, and it is the claim of the prosecution that Duncan without any further provocation raised the revolver and fired point blank at Powell's head, sending the bullet through his brain. Powell fell back on the floor and died in a few minutes. It is the claim of the defense that when Powell came to the bar he commenced pounding on it with his right hand, cursing Duncan and challenging him to fight; that he had his left hand in his pocket and drew it out and brought it up over the bar. The defendant claims that he saw a flash coming over the bar, and believing that Powell was about to shoot him, he shot Powell in self-defense.

There were a number of persons in the saloon at the time-nine or ten-who testified, giving their respective versions of the occurrence. There is a great discrepancy in their testimony, hardly to be accounted for by honest differences of recollection. It is certain that Powell entered the saloon and conducted himself in the disorderly manner described; that he threatened to whip Duncan, and after being induced to go as far as the door, returned to the bar opposite Duncan. The question involved in the greatest uncertainty in the evidence is the conduct of the two men at the precise time of the shooting and for a moment before. Of all the nine or ten witnesses in the room, none seem, according to the testimony, to have seen the actual shooting or what occurred between the two men at the precise time or an instant before. If Powell's actions at that time were such as to justify Duncan in believing that Powell was about to attack him with a knife or revolver, he was justified in shooting Powell. The police were called directly after the occurrence and arrived at the saloon within five minutes. Powell was lying on his back on the floor in front of the bar, with his feet within a foot or two of the bar, and upon the floor beside him, within a few inches of his left hand, was lying an open clasp-knife. Nobody testified to seeing him have this knife in his hand except McKinney, who testified that when Powell came back to the bar he had his left hand down at his side, and that while he was pounding on the bar with his right hand he brought his left hand above the bar with the knife in it and struck at Duncan, missing his neck three or four inches. Everybody went out of the room immediately after the shooting, leaving Duncan and McKinney there alone, and they were arrested there by the police upon their arrival within five minutes. It is claimed by the prosecution that Duncan placed the knife beside the body. There is no evidence of it.

The case was tried by the state on the theory that Powell was not shot by Duncan in self-defense, but that because Powell had threatened to whip Duncan in his own saloon Duncan stood with the revolver in his hand waiting several minutes for an opportunity to shoot Powell, who was unarmed; that he got the revolver for that purpose; and that he killed Powell with premeditated malice. It is claimed by the prosecution that when Powell came to the saloon he was apparently in a jovial mood, and that the exchange of rough language was merely playful banter up to the time when Powell stated that if Duncan would come out from behind the bar Powell would whip him in his own saloon and the defendant ordered Powell to get out of the place and stay out. There was also evidence of Powell, together with his two companions, being in other places of like resort in that same evening before coming to Duncan's place, and threatening that he was going to Duncan's place, that he was going to get Duncan, and if he could not whip him he was going to cut his guts out. A witness testified that at one place he exhibited the knife which was afterward found beside his body on the floor of Duncan's saloon, or one like it.

There was serious conflict in the testimony. While there were a number of persons in the saloon, their testimony as to the occurrences of the few minutes after Powell came in before his death differs so much in details as to be difficult, if not impossible, of reconcilement. In such a condition it is essential, in order to sustain the verdict, that the jury should have been properly instructed and that no substantial error should have occurred on the trial. The defense was self-defense. The questions of law in the case were not intricate or complex and did not require a great volume of instructions as to the law, but 22 instructions on behalf of the people and 38 on behalf of the defendant were given, all occupying 28 printed pages of the abstract.

The fifth, ninth, and eleventh instructions are complained of. The fifth instruction is section 148 of the Criminal Code (Smith-Hurd Rev. St. 1923, c. 38, § 366), and except the opening clause, ‘justifiable homicide is the killing of a human being in necessary self-defense,’ has no application to the case and should not have been given. It could only confuse the jury and distract their minds to apply it to the case. People v. Davis, 300 Ill. 226, 133 N. E. 320.

The first instruction defined ‘murder’ as the unlawful killing of a human being in the peace of the people, with malice aforethought,either expressed or implied. The ninth instruction was as follows:

‘The jury are instructed that the deliberate intention, called malice aforethought, need be only such deliberation and thought as enables a person to appreciate and understand, at the time the act was committed, the nature of his act and its probable results.

This instruction practically eliminated ...