People v. Gilday

• Decision Date: 23 December 1932
• Docket Number: No. 21560.,21560.
• Citation: 351 Ill. 11,183 N.E. 573
• Parties: PEOPLE v. GILDAY.
• Court: Illinois Supreme Court

351 Ill. 11

183 N.E. 573

PEOPLE

v.GILDAY.

No. 21560.

Supreme Court of Illinois.

Dec. 23, 1932.

Error to Criminal Court, Cook County; John Prystalski, Judge.

Daniel L. Gilday was convicted of assault with intent to murder, and he brings error.

Reversed and remanded.Wm. Scott Stewart, of Chicago, for plaintiff in error.

Oscar E. Carlstrom, Atty. Gen., John A. Swanson, State's Atty., of Chicago, and J. J. Neiger, of Springfield (Edward E. Wilson and Grenville Beardsley, both of Chicago, of counsel), for the People.

DUNN, J.

Daniel L. Gilday was indicted in the criminal court of Cook county for an assault with a revolver upon Herman Knol with intent to murder him. Upon a trial by a jury he was found guilty and sentenced to imprisonment in the penitentiary, and he prosecutes this writ of error from the judgment.

It is claimed that the indictment should have been quashed because it did not allege by what means the assault was committed; that the court erred in allowing a peremptory challenge of two jurors by the prosecution, in admitting evidence that the defendant shot and wounded the prosecuting witness,and in admitting in evidence a pistol, a tear gas gun, and certain stars found on the defendant; that no specific intent to kill was proved; that the court erred in giving and refusing instructions; and that the state's attorney was guilty of such misconduct on the trial as to deprive the defendant of a fair trial.

[1] The indictment merely charged the defendant with making an assault with a revolver, without saying whether it was loaded or not or whether the defendant shot it or used it as a club or in any other way. The assault and intent were well enough charged, and the manner of the assault was to be shown by the evidence. No motion for a bill of particulars was made showing circumstances which made more particular averments necessary to enable the defendant to understand the nature of the charge against him or to prepare his defense. It is clear that the defendant was not hampered in his defense for want of a fuller statement of the offense charged.

Gilday was sixty-six years old, and weighed about 140 pounds at the time the events in question occurred, November 29, 1931. Dr. J. W. Edwards testified that Gilday had been his patient since April, 1930; that he had a condition of extremely low blood pressure, giving rise to attacks of dizziness, and had arteriosclerosis; that there was no reason for the attacks of dizziness coming as they did; that occasionally intense excitement would bring them on; that he was treating Gilday for hardening of the arteries, and advised him to take whisky daily, but did not prescribe it. Gilday had been an insurance broker, and had been for eight years a director of the Better Government Association. He had been an investigator for the Englewood Law and OrderLeague, which had gone out of existence four years before the trial. He was an investigator under Patrick Roche, chief investigator for the state's attorney of Cook county, on a salary which was paid by the county, and had worked with Palmer Anderson from time to time when Anderson was United States marshal. As investigator for the state's attorney, he had received from Roche, the chief investigator, about two weeks prior to the shooting, a star as a badge of his office. He had also been given a police star at the direction of the chief of police of the city of Chicago at the time he was engaged in the work of the Englewood Law and Order League. He had a tear gas gun in the form of a fountain pen which Anderson had given him, and a pistol which had been given him in connection with his work. In the course of the preceding four or five years, several hundred places had been closed as the result of his work as an investigator. At the time of the shooting he had no his person the two stars, the pistol, the tear gas gun, and a pint of whisky, and he was intoxicated, or apparently so.

The shooting occurred at about 7:30 in the evening of November 29, 1931, at the intersection of Seventieth and Green streets. Gilday testified that during the afternoon he had left his home at about 3 o'clock and gone to the Englewood police station, at Sixty-Third street and Wentworth, where he had a conversation with Capt. Lee. He then went by street car to Sixty-Third and Halsted, and from there walked to Fifty-Ninth and Halsted looking for a speak-easy run by Thomas Buggy, which he finally found. Buggy was absent, but later came in, and the two sat at a table in a private booth and drank some intoxicating liquor. Gilday was seeking information as to some kidnappers. From Buggy's he went to a speak-easy of Henry Hoffman, at Sixth-Ninth and Halsted, but the door was locked, and he went to Sixty-Ninth and Peoria looking for a man by the name of McCabe, whom he did not find. He thought he then walked along Sixty-Ninth street to Halsted. He felt dizzy, and also felt the effect of the liquor he had drunk. Witnesses who saw him as he neared Halsted testified to circumstances which gave him the appearance of being badly intoxicated, and they thought he was. The decided weight of the evidence was that he was intoxicated.

At Seventieth and Halsted streets two young men, Herman Alkema and Herman Knol, eighteen and seventeen years of age, respectively, walking north on Halsted to go to the Open Door Mission at that corner, saw Gilday. They testified that he was staggering, and they asked if they could help him. He said yes. They asked where he lived, and he said ‘over there.’ Supporting him, one on either side, they walked with him to Green and Seventieth streets. They testified in substance that there Gilday drew his pistol and pointed it at Alkema, who started to run. He then pointed it at Knol's chest. Knol seized the pistol and Gilday's hand and tried to push the pistol from him. Both having hold of the pistol it was discharged, the bullet striking Knol in the abdomen, perforating his bowels in several places, and passing out of his back. Gilday testified in substance that one of the boys said to him, ‘Give us what you have got’; that he drew the pistol, intending to scare them; that one of them grabbed it and in the scuffle the pistol was discharged; that he never intended to harm but only wanted to scare them. At the sound of the shot Alkema ran to a neighboring drug store and called the police. Frank E. Fenneman, at his home, 6958 Green street, heard the shot, and looking out of the window saw two bodies lying in the street. He went out, and the young man lying there said, ‘Take that gun off that man.’ Fenneman took the pistol from Gilday's hand and asked if he shot the boy. Gilday said ‘Yes,’ and, in response to Fenneman's question what he shot him for, asked Fenneman's name. Fenneman asked him what he wanted to know for, and Gilday answered, ‘Because you got my gun and I want to know who has got it.’ Fenneman had to get close to hear Gilday and smelled the odor of liquor. Gilday's tongue was very thick, he was incoherent and indistinct, and his eyes were glassy and bloodshot. Francis Hannan, who was driving an automobile stopped and took the boy to the hospital. Fenneman turned Gilday over on his back, picked him up, and set him on the curbstone. A police squad car came. Two of the policemen had at one time been assigned to guard Gilday's home and knew him. Walter Lyons, one of the policemen, asked, ‘What is the matter, Mr. Gilday?’ Gilday answered, ‘Oh, I got one of them.’ Lyons asked, ‘One of who? Where is he?’ Gilday said, ‘I do not know.’ Lyons asked, ‘Did you shoot somebody?’ Gilday said, ‘Yes.’ Gilday was taken to a hospital and then to a police station.

Gilday proved by many respectable and credible witnesses that his reputation was good as a peaceable and law-abiding citizen.

In an indictment for an assault with intent to commit murder, the allegation of the intent with which the assault was committed is material, and the people must prove the specific intent alleged beyond a reasonable doubt. People v. Herbert, 340 Ill. 320, 172 N. E. 740. It is the main contention of the plaintiff in error that there was no proof of any specific intent to kill, and the verdict was therefore without evidence to support it. It seems evident from the testimony, the contradictory accounts of the occurrence at the time of the shooting given by the plaintiff in error and the two boys who participated in it, that the question of the intention of the plaintiff in error was manifestly one upon which the verdict of the jury must be conclusive, and that the judgment ought not to be reversed, unless prejudicial error occurred on the trial. If the young men demanded that Gilday give them what he had, and he believed they intended to rob him, he had a right to defend himself against their anticipated attack, and, if in doing so he wounded or killed one or both of them, he would be guilty of no crime. On the other hand, if he made the assault with the pistol on them as they testified and had the intention to kill them, he would be guilty of the crime charged in the indictment. The questions of fact were for the jury to determine whether Alkema and Knol demanded of Gilday what he had or Gilday made an assault upon them, whether Gilday intentionally fired the pistol or it was accidentally discharged, and whether, if he intentionally fired the shot, he intended to kill Knol. The degree of Gilday's intoxication and its effect on his mental processes were questions of fact to be determined from the...