People v. Herbert

• Decision Date: 18 June 1935
• Docket Number: No. 22680.,22680.
• Citation: 361 Ill. 64,196 N.E. 821
• Parties: PEOPLE v. HERBERT.
• Court: Illinois Supreme Court

361 Ill. 64

196 N.E. 821

PEOPLE

v.HERBERT.

No. 22680.

Supreme Court of Illinois.

June 18, 1935.

Error to Criminal Court, Cook County; Charles A. Williams, Judge.

Earl Herbert was convicted of murder, and he brings error.

Reversed and remanded.

ORR, J., dissenting.Louis N. Blumenthal and Samuel L. Golan, both of Chicago, for plaintiff in error.

Otto Kerner, Atty. Gen., Thomas J. Courtney, State's Atty., of Chicago, and J. J. Neiger, of Springfield (Edward E. Wilson and Henry E. Seyfarth, both of Chicago, of counsel), for the People.

HERRICK, Justice.

The plaintiff in error, Earl Herbert (hereinafter called the defendant), was convicted at the June term, 1931, of the criminal court of Cook county, of the crime of murder, and was sentenced to the penitentiary for the term of his natural life. The cause comes here for review on writ of error sued out of this court by the defendant to review the judgment of conviction.

Numerous errors are assigned, but, so far as material here they may be grouped as follows: (1) The trial court erred in admitting immaterial, irrelevant, prejudicial, and hearsay evidence on the part of the people; (2) the prosecuting witness was guilty of misconduct in the courtroom which prejudiced the defendant's case, and the trial court erred in refusing to withdraw a juror and to continue the cause on the motion of the defendant; and (3) the court erred in giving certain instructions to the jury on behalf of the people and erred in refusing to give instruction 10 on behalf of the defendant.

The facts which we deem material to the consideration of the case and as shown by the record are substantially as follows: Thomas Bonner, in July, 1930, lived on the first floor of an apartment building at 7353 Yale avenue, Chicago. About 12:10 a. m. on July 10, 1930, his door bell rang. He answered the ring. A few minutes later his wife, Mary, heard some loud talking, and thereupon came to the hallway of the apartment. She there saw two men with revolvers in their hands facing her husband. She heard her husband say, ‘You've got me wrong,’ and after that the man whose back was to the door shot her husband. He died several hours later. The wife testified that everything went black when the shot was fired. The men disappeared immediately after the shooting. Lieut. Moran, of the Englewood station, arrived at the home of the deceased at about 12:20 or 12:25 a. m. and found Mrs. Bonner in an hysterical condition. After he gave her an opportunity to become calm and to collect herself, she gave him the description of the man who fired the shot, which description was as follows: ‘A man about five feet ten inches tall, weighing about 180 pounds, dark, sallow ‘complected’ and pointed nose and a brown suit.' On July 16, 1930, Police Officers Joseph Haksa and Ed Tyrrell called at the Bonner apartment, bringing with them a large book containing photographs of various persons. The officers started from the rear of the book, showing Mrs. Bonner the pictures. The second picture from the back was a photograph of three men. The name of each individual was printed under his photograph as it appeared in the group picture. The center one of the three was the defendant, Earl Herbert. There is some conflict in the evidence as to just what occurred when Mrs. Bonner viewed this picture. There is in evidence testimony to the effect that she became hysterical and that she pointed out the picture of Herbert as the man who had killed her husband. There is other evidence to the effect that she turned to her son, Willie, who was present, and asked him if he knew any of the people in the photograph.

On October 10, 1930, the defendant was arrested at a pool room and restaurant in Summit, one of the environs of Chicago. The parties arresting the defendant consisted of Seaton, of the Walgreen Company, C. L. Rogers, an investigator for the Walgreen Company, and three highway deputy sheriffs, named Peterson, Jelinek, and Flaherty. Peterson and Rogers both testified that the defendant, as he was being driven to the police station after the arrest, attempted to bribe them to release him. There is no evidence that he at the time of his arrest or prior to the alleged conversation with Peterson and Rogers had been advised of the offense with which he was charged.

On the 11th day of October, 1930, Mrs. Bonner, her son and daughter were taken to the detective bureau. A few minutes after the arrival of Mrs. Bonner and her children, the defendant, handcuffed to a police officer, was brought into Chief Rafferty's office, where Mrs. Bonner, her son and daughter were present. He was told to take different positions, which he did. He was then ordered taken out of the room by Chief Norton. Some ten or fifteen minutes later he was again brought into the room where Mrs. Bonner was. She again looked at him for several minutes. He was again asked to, and did, assume different positions. There is a controversy, which will be referred to herein later, as to whether Mrs. Bonner on these occasions made the statement, in substance, in the presence and hearing of the defendant, that she recognized him as the man who killed her husband. Later on this same day, handcuffed to a police officer, the defendant was placed in a squad car and driven to the home of Mrs. Bonner. At the Bonner home he was placed in the same hallway where the deceased was murdered, was asked to, and did, take different positions, a straw hat was placed on his head, and he was viewed for some minutes by Mrs. Bonner. There is also a conflict as to what was said or done by Mrs. Bonner on this occasion.

On the trial of the case Mrs. Bonner testified she recognized Earl Herbert as the man who killed her husband. She testified that the man who fired the shot wore a gray suit and a milan straw hat turned down, and that he had a very sallow complexion and was very pale. The people introduced the evidence of several police officers who were present at the time of the showups of Herbert at the detective bureau and at the Bonner home, all of whom testified that she identified the defendant, although they differ as to what words she said on that subject.

The defendant testified in his own behalf. He denied that he committed the murder. He testified that he did not know, see, or even hear of Thomas Bonner in his lifetime; that at the time of the murder, on July 10, 1930, and prior thereto, from the latter part of May until after Labor Day of that year, he was continuously residing in, without ever leaving, Cleveland, Ohio, or the adjacent resort of Bay Village, approximately one-half hour's ride from 10226 Madison avenue, where he lived for a time with his cousin, Mrs. May Fortier, until he and the Fortier family left for the summer cottage in Bay Village. He testified that he did not know why he was being shown up to Mrs. Bonner; that he had never seen nor heard of her before in his lifetime; that she looked at him three different times and each time shook her head in the negative; that nothing was said to him concerning the murder of Bonner, or that he was charged with such murder at the time of or prior to any of the occasions on which he was produced for the purpose of having Mrs. Bonner view him, and that it was some time after these different showups before he knew he was charged with such murder. He denied making an attempt to bribe Rogers and Peterson. The defense also introduced the testimony of Mrs. May Fortier and her husband, Howard, the defendant's cousin, Mrs. Gladys Reagan, her aunt, Mrs. Mary Niggle, and her husband, Edward, and the defendant's uncle, Charles Herbert, all of whom testified that the defendant was in Cleveland, Ohio, and Bay Village, Ohio, during all the time from the latter part of May until after Labor Day of 1930. These witnesses fixed the date of July 10 from the fact that Archibald C. Payton, who was an uncle of Mrs. Reagan, then died in Lorain, a suburb of Cleveland. The testimony of some of the alibi witnesses definitely and completely covered all the time of the commission of the murder, and was to the effect that the defendant was in Cleveland and Bay Village the night of the 9th and all of the morning of July 10.

We will first take up the rulings of the trial court on the admission of evidence against which complaint is lodged by the defendant.

On redirect examination Mrs. Bonner made the statement, in an answer propounded to her by the assistant state's attorney, that she had had police officers detailed at her home for some time just prior to the trial. Objection was made to this statement, and the objection was overruled. The detailing of a police guard at the home of Mrs. Bonner was an act over which the defendant had no control. It was a fact unconnected with the crime charged against the defendant and was in no wise relevant to the issues on trial. It had no legitimate place in the case, and, whatever might have been its purpose, it tended to create in the minds of the jury the impression, if not the belief, that the prosecuting witness was in danger of her life or person or of being intimidated by threats of violence by reason of her activity in prosecuting the defendant. It was prejudicial error to permit this statement to go to the jury. People v. Fiorita, 339 Ill. 78, 170 N. E. 690;People v. Johnson, 314 Ill. 486, 145 N. E. 703;People v. Decker, 310 Ill. 234, 141 N. E. 710.

On his cross-examination the defendant was asked when was the first time he went to Cleveland. Objection interposed by the defendant was overruled, and he answered that the first time he recollected he went to Cleveland was about twenty-one years ago. He was then asked if he had gone a number of times since then, to which he answered he had. He was then asked, ‘Did you always go to Cleveland voluntarily?’ Objection was made an overruled and the witness answered that he had. Later he was asked if he went to Cleveland in August, 1920. Objection was interposed and...