People v. Kelly

• Court: Illinois Supreme Court
• Writing for the Court: PER CURIAM
• Citation: People v. Kelly, 136 N.E.2d 785, 8 Ill.2d 604 (Ill. 1956)
• Decision Date: 23 May 1956
• Docket Number: No. 33798,33798
• Parties: The PEOPLE of the State of Illinois, Defendant in Error, v. George KELLY, Plaintiff in Error.

Page 785

136 N.E.2d 785

8 Ill.2d 604

The PEOPLE of the State of Illinois, Defendant in Error, v. George KELLY, Plaintiff in Error.

No. 33798.

Supreme Court of Illinois.

May 23, 1956.

As Modified on Denial of Rehearing Sept. 12, 1956.

Gerald W. Getty, Public Defender, Chicago (John M. Branion, Chicago, of counsel), for plaintiff in error.

Latham Castle, Atty. Gen., and John Gutknecht, State's Atty., Chicago (Fred G. Leach, Decatur, Edwin A. Strugala, Irwin D. Bloch, John T. Gallagher, Rudolph L. Janega, William L. Carlin, and Frank G. Whalen, Chicago, of counsel), for the People.

PER CURIAM.

This case, on writ of error from the criminal court of Cook County, is here for review of a judgment on a jury verdict finding the defendant guilty of murder and fixing punishment at death. The common law record and a full transcript of the proceedings are before us.

It is undisputed that about 1:00 P. M. on February 22, 1954, in the rear room of a tavern called the Corner Liquor [8 Ill.2d 607] at 45 East Garfield Boulevard in Chicago, the defendant George Kelly shot the tavern operator Robert Gottstein, two bullets going through the brain, and Gottstein died of these wounds. The defendant does not deny the shooting, but claims self-defense and alleges that certain irregularities occurred in the trial. As presented and argued by both the People and the defense, the issue involves why the defendant was in the tavern, particularly why he was in the rear room, what precisely happened, and what the defendant said at the time and in later statements bearing on his actions and intent.

The People presented six material witnesses in this regard. Eddie Towns, a porter at the tavern, said Gottstein was sleeping in the back room and that a waitress asked him to go back there for some ice. He said that when he went for the ice, the defendant followed him, put a gun on him, said 'this is a stick-up,' and in the back room told him to turn around. Then, he said, he heard a couple of blows like someone tapped another on the head; afterward, he heard a shot and somebody fell.

Mattie Cathey, the waitress, said the defendant was in the tavern from about 10:30 A. M. until the incident, that Gottstein waited on him and she served him beer and brought him some cigarettes, and that Gottstein went into the back room to lie down. She said she sent the porter for some ice and went about her business. When he did not return, she went after him, saw the defendant, heard a shot, didn't know what was going on, and ran.

Neil Wilson, a Chicago Park District police officer, said he saw a crowd at the tavern, stopped the car, went in, got a description of the defendant, and began patrolling the neighborhood. He said he saw him, approached him, and asked him why he had shot the man in the tavern, and that the defendant replied it was because the man shot at him first. The officer said that on being asked his purpose in the tavern, the defendant said he was there to stick up the place, and on being asked to tell the whole story, said 'he went back with the intention of robbing the owner of the tavern and when he went in the back he said the tavern owner was asleep upon the couch and he said he aroused the tavern owner and told him to keep quiet and the tavern owner moved as if to get off the cot he was on and he said he hit him over the head with his gun; he hit him several times and the tavern owner when he struck him with the gun fell on the floor and he was in a kneeling position on the floor; and he saw the tavern owner going to his pocket for a gun and that he knew he had in his pocket and he said the tavern owner came out with the gun and fired a shot at him, and he stepped back several feet and fired twice at the tavern owner.'

Charles Younger, a Chicago police plainclothesman, who went to the tavern about two o'clock after the incident, said the defendant told him he had been in the tavern the night before, had seen the proprietor put some money under the register, and on the day in question 'went in there to stick the tavern up, to hold the proprietor up.' He said that the defendant then told of following the porter into the back room and ordering him to waken Gottstein, and further ordering the wakened proprietor to remain still: 'and that the man instead rolled to the floor, and that as he rolled to the floor that he struck him once on the head; the man tried to get up again and he struck him again on the head with his revolver; at that time the man went in his pocket and pulled a gun and fired a shot at him; thereupon he fired two shots at the proprietor.'

All four of these witnesses identified the defendant and the homicide weapon, a Colt .38-caliber police special.

Eugene Precin, a stenotype reporter, and Lester Shapiro, an assistant State's Attorney, identified a question and answer statement taken from the defendant at 5:25 the afternoon of the shooting and signed about 11 o'clock the next morning. It was taken in the presence of Younger, Mattie Cathey, Shapiro and Robert Parker, Younger's fellow-officer. It was signed in the presence of Younger, Parker, Wilson, and Shapiro. It contained Kelly's signature, spelled 'Kelley,' on each page, and on the last page over his signature, in his own handwriting, the statement: 'I have read this statement and it is all true. Mr. Shapiro read one copy aloud to me which I follow by reading this statement.' There is no contention made that this statement was involuntary.

Cross-examination of Towns, the porter, revealed that he ahd not prior to the trial told anyone else that the defendant had said 'This is a stick-up' at the time of the incident. But on redirect he could not recall that anyone had ever asked him. On the same point, Younger said on cross-examination that he did not remember the defendant's ever admitting to him that he had told the porter it was a stick-up.

The written statement went into far greater detail than the oral admissions or direct testimony of the two tavern witnesses, but it was corroborative. Cross-examination of Shapiro revealed that he did not formally introduce himself as an assistant State's Attorney until a point on page four of the statement, that he was quite leading in some of his questions, and that he, rather than the defendant, used for the first time in the transcribed portion of the interview the word 'rob.' But it was clear from the whole transcript that Shapiro did introduce himself at the very outset, and that much of what went into the transcribed portion of the interview was the result of an earlier preliminary oral discussion.

The only defense witness was the defendant himself. His version of the incident was simple and direct. As he put it, he had been in the tavern the night before and bought a beer, giving Gottstein a ten-dollar bill. He said when he counted his change he had only $4.70 and called the matter to Gottstein's attention. He said Gottstein then snatched the bottle from in front of him and said 'You have your change. The best thing for you to do is get out of here because this is a neighborhood tavern.' The defendant said he saw the imprint of the handle of a pistol in Gottstein's pocket when Gottstein reached in the pocket, so he left. But he said he went back the next morning to get his money and took the gun with him because he remembered the gun Gottstein had.

The defendant's version of the actual shooting is consistent with that of Mattie Cathey and Towns, except that the defendant denies striking Gottstein before Gottstein's shot, he denies telling Towns 'this is a stick-up,' and he says he first pulled the gun when Towns gave him a stiff arm at the door of the back room. In the defendant's words: 'I asked Mr. Towns to turn the light on, and he turned the light on and then I tells him, 'Wake your boss up' and he woke him up. After he woke him up, after he woke him up, he raised up and he ups and rolls off on the floor and fires at me. Then in return I fire back at him. Before the firing I did not strike him with the gun, that was just made up. When I fired at him, I was scared. I mean just like a dream or something running down on you, you don't know what to do. I did not expect him to shoot at me when I went back there. I did not go back there to hold him up. I fired twice. After I fired twice, I stood up for awhile and then I told Mr. Towns 'You better call the police or an ambulance quick.' Then I ran out.'

As to the oral admissions and written statement to the effect that he had gone to the place to rob Gottstein, taht he had struck Gottstein over the head twice before any shooting took place, and certain other incriminating details, the defendant testified that at the police station 'everybody had automatically got it in their head that I was there to stick the man up.' He said he had never told anyone he had gone to the place for a holdup, and he said regarding his admissions of striking Gottstein over the head that he was lying and the stories were 'made up' or 'fiction.'

On this record, the defendant here argues five main points: (1) Murder was not proved beyond a reasonable doubt. (2) There was error in the giving and refusing of instructions. (3) There was error in the admission of evidence. (4) The death penalty fixed by the jury was the result of prejudicial passion. (5) He was not tried by an impartial jury, because one petit juror was the wife of a member of the grand jury that voted the indictment.

The defendant argues that the testimony of Towns is unsatisfactory because it includes the statement that the defendant said 'This is a stick-up,' although Towns did not tell anyone, not even the investigating authorities, about any such declaration by the defendant. But the fact Towns told no one before the trial about the defendant's declaration does not prove that the defendant did not make it. For it is equally clear nobody asked Towns about it, and the facts that Towns did relate are all...