People v. Gibbs

• Decision Date: 24 June 1932
• Docket Number: No. 21338.,21338.
• Citation: 349 Ill. 83,181 N.E. 628
• Parties: PEOPLE v. GIBBS.
• Court: Illinois Supreme Court

349 Ill. 83

181 N.E. 628

PEOPLE

v.GIBBS.

No. 21338.

Supreme Court of Illinois.

June 24, 1932.

Error to Circuit Court, Franklin County; Roy E. Pearce, Judge.

Harry Gibbs was convicted of murder, and he brings error.

Affirmed.

R. E. Smith, of Benton, for plaintiff in error.

Oscar E. Carlstrom, Atty. Gen., Marion M. Hart, State's Atty., of Benton, J. J. Neiger, of Springfield, and R. E. Hickman, of Benton (T. G. Lewis, of Benton, of counsel), for the People.

JONES, J.

Harry Gibbs (referred to as defendant) was convicted in the circuit court of Franklin county of murder, and his punishment was fixed at forty-five years in the penitentiary. The cause is in this court on writ of error.

Gibbs resided in West City, a small village adjoining the city of Benton. His dwelling house was south of and about twenty-five or thirty feet from a highway running east and west. Pauline, his wife, and their 4 year old child resided with him. The family was frequently visited by his wife's sister, Audrey Ray. There were other occupied houses across the road. On the east side of defendant's house steps led from the back porch to the ground. The distance from the back steps to the northeast corner of the house was approximately seventeen feet. Shortly before 5 o'clock p. m. on December 21, 1930, Donald Wilcox, a young man about 29 years old, residing in the vicinity, parked his car off the hard road in front of defendant's house, left the engine running, and entered the premises. Within a few minutes thereafter the neighbors heard a shot fired and found the dead body of Wilcox lying on the ground near the northeast corner of the house. The body was on its right side, with the head to the northwest and the feet to the southeast. Both of the hands of the deceased were in the front pockets of his pants. He had been killed by a shot fired from a shotgun. The wound was on the left side of the neck, severing both the jugular vein and the spinal cord. No weapon of any kind was found on or about the body. Deceased had a small unopened pocketknife in his pants pocket.

Shortly after the body was found, defendant was arrested at the home of his brother, Jim Gibbs. According to the testimony of a number of witnesses for the prosecution, defendant was asked, shortly after his arrest, by one of the officers, why he had killed Wilcox. Defendant repliedhe had done so because Wilcox was coming toward him with an ax. Defendant was then taken to his home. He went into the house and procured a shotgun which he said he had used to kill Wilcox and gave it to the officers. At that time he showed the officers the place where he stood when he shot Wilcox. He fixed it about four or five feet east of the steps at the back porch and approximately seventeen feet south of where the body was found. He was then taken to the jail, and there repeated the statement that he killed Wilcox because the latter was coming at him with an ax over his shoulder. He further stated that at the time he fired the shot he was not afraid of Wilcox, but was a little ‘leery’ of him; that he was not afraid of his injuring his wife, his child, his sister-in-law, or any other member of his family; that it was light enough to see Wilcox, and he could plainly see the ax; and that, while he had been drinking, he was not too drunk to know what he ws doing.

The testimony on the part of defendant shows that in the afternoon of the day of the killing defendant and his family were away from home; that his wife and Audrey Ray returned a few minutes after 4 o'clock; that Wilcox stopped at the house and knocked at the front door, but the two women concealed themselves in the pantry and did not answer his knock; that he left, and that about 4:30 defendant came home. The women told him about their hiding from Wilcox. About 5 o'clock Wilcox returned to defendant's home. Defendant was then lying on a daybed, with his shoes off. The testimony further shows that the sister-in-law, Miss Ray, went to the door and told Wilcox defendant did not want him there and he had better leave or there would be trouble; that Wilcox replied, ‘To hell with Harry;’ but did not leave; that thereupon defendant's wife, at his request, also importuned Wilcox to leave, but he refused to go; that defendant went out on the back porch and requested Wilcox to leave, as he did not want him there and did not want any trouble with him; that defendant went back into the house, secured his shotgun, loaded it, and went out the second time; that Wilcox was then standing about four feet northeast of the house, where he was killed, and according to defendant's admission the distance between them had increased after he came out with the gun and before he fired the shot.

Defendant testified that when he first went out of the house Wilcox had an ax, and said, ‘God damn you, I'm going to kill you;’ that he (defendant) said, ‘All right,’ and went into the house, got the gun, went out again, and told Wilcox to go away; that Wilcox repeated his remark and ran his hand into his pocket; that defendant then fired; that after he fired he went into the house, set the gun down in the corner, and put on his shoes; that he went to the house of Ellis Wilson and Dugan Moore and to his brother Jim's house. He admitted that he told the officers he killed Wilcox because he came at him with an ax, but explained that when he made the statement the state's attorney charged him with lying, and he replied, ‘Maybe I am.’ A witness for the prosecution testified that shortly after the killing defendant went to the home of Tony Miller and asked him to get George Lockhart, a cab driver, saying that he had shot a man and had to get out ‘hot.’ Defendant's version of this conversation is that he asked Miller to procure an automobile for him to go out to his father-in-law's.

Wilcox had been acquainted with defendant's wife and sister-in-law for many years, and had visited the home of defendant. Audrey Ray, the sister-in-law, testified that on July 4 prior to the killing Wilcox put his hand on Pauline's shoulder and asked her to go to a dance with him that night; that defendant ordered Wilcox to leave; that in the early part of September, and again in October, Wilcox came to the house and defendant ordered him to leave and stay away; that when Wilcox was ordered away on July 4 he said it was a good thing Gibbs did not start anything, as he (Wilcox) had a gun and would have used it; and that she told defendant about it. Defendant testified he heard Wilcox try to make the date with his wife. Miss Ray also testified that defendant told Wilcox on the day of the homicide that he had better leave as he did not want any trouble with him; that thereupon Wilcox picked up an ax that was lying by the well and said, ‘God damn you, I am going to kill you;’ that defendant then went into the house and came out with a gun; that, when defendant went into the house, Wilcox dropped the ax and defendant's wife picked it up and started to the south end of the house with it; that Wilcox walked toward the northeast corner of the house, and, as defendant came down the steps, Miss Ray walked into the house and heard Wilcox repeat his threat and heard the shot fired. She was taken into custody at the time defendant was arrested and questioned by the officers. She told them Wilcox came to the house to talk to her about his sweetheart, Pearl Hunt, but on the trial she said he came to see defendant's wife, Pauline; that the story she told at the jail was not true, and what she had said about Pearl Hunt was told to protect her sister. At the time she was questioned by the officers she omitted any statement about her sister picking up the ax. On the evening of the killing, the sheriff found the ax at the rear of the house, lying on a coal pile at the place where defendant said he left it that morning.

The grounds urged for reversal are that the court improperly admitted evidence relating to statements made by defendant when he was questioned by the officers in the county jail, and also that the court gave improper instructions on behalf of the prosecution and refused proper instructions offered by the defendant. The defendant does not complain of the statements made by him...