People v. King

• Citation: 276 Ill. 138,114 N.E. 601
• Decision Date: 21 December 1916
• Docket Number: No. 10889.,10889.
• Parties: PEOPLE v. KING.
• Court: Supreme Court of Illinois

276 Ill. 138

114 N.E. 601

PEOPLE

v.KING.

No. 10889.

Supreme Court of Illinois.

Dec. 21, 1916.

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

Harrison King was convicted of murder, and he brings error. Reversed and remanded.

Craig, C. J., and Farmer, J., dissenting.

Bernard Kelly, of Joliet, for plaintiff in error.

P. J. Lucey, Atty. Gen., C. E. McNemar, State's Atty., of Peoria, and A. R. Roy, Asst. Atty. Gen. (George A. Shurtleff and Clarence D. Murphy, both of Peoria, of counsel), for the People.

CARTER, J.

Plaintiff in error, Harrison King, was found guilty in the circuit court of Peoria county of the murder of Norman Gray, the jury fixing the penalty at death. The trial court entered judgment on the verdict and fixed the date of the execution for June 17, 1916. This writ of error has been sued out to review the record.

January 24, 1916, at about 11 o'clock p. m., Norman Gray, a police officer of the city of Peoria, was shot and almost instantly killed in the sallon of Dave Amburn, in said city, just after the officer had placed under arrest the plaintiff in error and John Welch. Some six people besides Welch and Gray were in the saloon at the time of the homicide. The evidence shows that before the shooting, on the evening of January 24th, there had been several holdups by two or three men acting together; that Gray and his partner had been told from police headquarters about these holdups and were looking for the men; that the description they obtained over the telephone as to the perpetrators tallied somewhat with that of King and Welch; that officer Gray knew King, and apparently Welch, by sight; that not long after they were notified of these holdups, Gray and his brother officer, Arthur Filkins, separated, going in different directions in the line of their duty. The evidence further shows that shortly after they separated Gray entered Amburn's saloon and found King and Welch drinking beer; that he told them they were under arrest and took hold of them; that King immediately jerked away and ran out of the side door; that Gray kept his hold upon Welch, and a moment later, as he stood facing the side door through which King had run (as all of the witnesses who were in the saloon agree), the side door was opened and some one standing in the doorway, or, as some of the witnesses testified, stepping inside, shot the officer in the eye, causing death in a very short time. Three witnesses who were playing pool in the saloon—George Sandov, Jim Angelo, and Mike Leo—all testified through an interpreter that the man who did the shooting came in through the side door, and that he was the plaintiff in error, Harrison King. These witnesses all testified that King wore a black hat, and also testified generally with reference to the clothes he wore that night. As soon as Officer Gray placed King and Welch under arrest he asked the saloon keeper, Amburn, to telephone to the station for the wagon to come out and take the two prisoners. Amburn did as requested, and while he was in another room, telephoning, the shooting took place. William Filaski, who was employed as a porter in the saloon at the time, was present during the shooting, but died before the trial, and it does not appear whether he testified at the coroner's inquest. Joe Debel and Thomas Todhunter were also in the saloon at the time of the shooting. They both agreed with the other witnesses as to the arrest of King and Welch and as to King breaking away and running out the side door, but they both testified that they did not know who did the shooting; that some one came to the side door of the saloon through which King had just escaped and shot from the door, killing the policeman. It does not clearly appear from the evidence whether Angelo, Leo, and Sandov were so situated that they could see the side door, and persons near it, better than could Debel and Todhunter. King denied doing the shooting. His companion, Welch, testified on the trial that Filaski did the shooting through or from near the side door, just after King escaped. Welch admitted that after his arrest he stated to the police authorities that he did not know who did the shooting, and that he had not told anybody before the trial that Filaski did it. He stated, also, on the witness stand, that he and King had bought the revolver used in shooting the officer from the saloon keeper, Amburn, earlier in the evening; that he (Welch) had a conversation with Filaski just before the shooting, wherein the two agreed to go out in a short time and hold up some one to get some money; that he got the gun from King at that time and gave it to Filaski. The testimony of several of the witnesses, including Amburn, is that Filaski, immediately after the shooting, was holding Gray's head in his lap while the officer was lying on the floor of the saloon.

Shortly after the shooting a hat answering the description of the one that some of the witnesses testified King wore in the saloon immediately before the shooting was found about a block from the saloon in an alley, and the revolver not far from the hat. King and Welch both testified that King wore a cap the night in question and had it on in the saloon. King had been rooming for some days before the shooting at the house of Mr. and Mrs. Churlones, several blocks from Amburn's saloon, under the assumed name of John Smith. Mrs. Churlones testified that he returned there shortly after midnight on the night of the shooting, seemed excited and had nothing on his head—neither a hat nor a cap. He was arrested at this house about 5 o'clock the morning of the 25th by the police authorities, and the testimony is that he did not have either a hat or a cap that he could wear to the station although he kept the officers waiting while he looked for one. King testified that they did not give him time to look for his cap. Welch ran out of the saloon immediately after the officer was shot and was not found by the police authorities until his arrest in Kansas City several days after, when he was brought back and placed in jail in Peoria along with King. Henry Holley, who was then a prisoner in the jail charged with burglary, testified that he overheard a conversation between King and Welch in the jail, and that King said that after the shooting he went up to Adams street, in Peoria; that he dropped the gun; that he looked for it and lost his hat, and when he saw Welch coming did not know who it was and got scared. This testimony of Holley's was not denied on the stand by either King or Welch. King and Welch, on cross-examination, both admitted, over objection of plaintiff in error's counsel, that on the evening of January 24th they had held up several people with the revolver they bought from Amburn, and had hired a livery rig to take them about to different parts of the city and tied the horse not far from Amburn's saloon shortly before they went there. Several of the witnesses who saw them earlier in the evening testified that King wore a hat, their description fitting the hat that some of the other witnesses testified King was wearing in the saloon just before the shooting and that was found a short distance from the saloon shortly after the shooting.

Some testimony was offered during the trial for the purpose of impeaching the testmony of Sandov, Angelo, and Leo, to the effect that they were under the influence of liquor at the time Gray was shot. These three witnesses admitted that they drank one or two glasses of beer earlier in the evening, but others testified that they were not so under the influence of liquor that their testimony could not be relied upon for that reason. Counsel for plaintiff in error also insists that the interpreter did not fairly interpret the testimony of these three witnesses; that he (counsel) objected and the court overruled his objections. He concedes that there is nothing in the record to show this objection, but states that he asked to have the bill of exceptions show this fact, and that the court refused. From the record before us we think the conclusion is justified that they testified before the coroner's jury, shortly after the shooting of the officer, substantially as they did at the time of the trial, and that their testimony was fairly interpreted.

The most serious question in the case is the ruling of the court permitting counsel for the state to cross-examine Welch and King, over the objection of counsel for plaintiff in error, as to their having held up and robbed several people on the night in question, before Gray was shot. Counsel for the state insist that this question was not properly preserved for review by this court.

On the cross-examination of Welch, who was put on the stand before plaintiff in error, he was required, over the objection of plaintiff in error's counsel, to answer a series of questions, his answers being to the effect that he and King on the night in question, before Gray was shot, had held up three or four people, and had attempted to hold up three or four more, on the streets of Peoria, and that they had with them the revolver which it is conceded was used in shooting Gray, in some instances firing shots at people they attempted to hold up, but who ran away. Afterwards, when the plaintiff in error was on the stand, he was cross-examined, over objection, as to practically all of these holdups and attempts. The general rule under our system of jurisprudence is that evidence of a distinct substantive offense cannot be admitted in support of another offense. This is but the reiteration of a still more general rule, that in all cases, civil or criminal, the evidence must be confined to the point in issue. Farris v. People, 129 Ill. 521, 21 N. E. 821,4 L. R. A. 582, 16 Am. St. Rep. 283. This rule excludes all evidence of collateral facts or those which are incapable of affording any reasonable presumption or inference as to the principal fact or matter in dispute, the reason...