People v. Kircher

• Citation: 309 Ill. 500,141 N.E. 151
• Decision Date: 20 October 1923
• Docket Number: No. 15480.,15480.
• Parties: PEOPLE v. KIRCHER.
• Court: Supreme Court of Illinois

309 Ill. 500

141 N.E. 151

PEOPLE

v.KIRCHER.

No. 15480.

Supreme Court of Illinois.

Oct. 20, 1923.

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

Arthur Kircher was convicted of murder, and he brings error.

Affirmed.C. E. McNemar, of Peoria, for plaintiff in error.

Edward J. Brundage, Atty. Gen., Ernest J. Galbraith, State's Atty., of Peoria, Edward C. Fitch, of Springfield, and Ren L. Thurman, of Peoria, for the People.

DUNN, J.

Fred Wells was shot and killed a few minutes after 5 o'clock on the morning of December 3, 1921. Arthur Kircher was indicted for the murder by the grand jury of Peoria county, and upon a trial at the April term, 1922, was found guilty and sentenced to imprisonment in the penitentiary for 14 years. He has sued out a writ of error to reverse the judgment.

The deceased was a special officer employed by the Chicago, Burlington & Quincy Railroad Company to guard the freight cars and property of the company in the railroad yards at Peoria. He was seen about 12:30 a. m. on December 3, 1921, when he ate his lunch, which was brought to him at the foot of Edmund street, about 4 1/2 blocks from the Chicago, Burlington & Quincy freight house, by Clarence Averell, a night watchman. He was last seen alive about 5 o'clock the same morning by Henry Beam, a car cleaner for the Chicago, burlington & Quincy Railroad Company at the Union Station, about two blocks from the freight house. A few minutes later a number of shots were heard coming from the railroad yards by John Garrabrant, a night watchman of various plants in the neighborhood, which were from one to two blocks distant from the freight house. Garrabrant was on his last round, and as he was unlocking the door of the Meyers Furnace Works three men passed him going up Washington street toward the freight house. He went in, made his rounds, came out, and went across the street, and just as he stepped on Cedar street the shooting began. He counted up to five shots. He walked a short distance up Washington street and stood on the corner talking to another watchman, when three men came down the street from the direction of the freight house, on of whom was puffing, Garrabrant testified, ‘like a quarter horse.’ He asked the man who was puffing, ‘What the devil are you puffing about?’ but he turned and ran down May street without answering, while the other two went straight down Washington street. The shots were also heard by Freed J. Faust, a car inspector, who was at Cedar street, three blocks from the freight house, and who said they came so fast he could not count them. A search was made for Wells a little later, and before 7 o'clock his body was found in the yards beside a pile of ties. He had been shot in the right arm, the right leg, and the chest; the last wound causing his death. The ball entered the body at a point about 2 1/2 inches below the armpit on the right side, and passed through the right lung and the blood vessel carrying blood from the heart to the upper part of the body, and out of the body through the sternum.

The Chicago, Burlington & Quincy Railroad freight house is located at the corner of Washington and Persimmon streets. On the side of the freight house toward the river there is a loading platform, and next to it are several stub tracks, on each of which on the night of the homicide a number of freight cars were standing. Among them, on track 1, which is next to the loading platform, was a Rock Island car, No. 34476, which was placed there about 3 or 3:30 o'clock that morning. It was near the end of the freight house toward Pecan street, which is two blocks from Persimmon street. Both doors were closed and the seals intact when the car was checked at 11 o'clock that night, but about 6:20 o'clock, while the search for Wells' body was in progress and it was yet dark, the searchers by the aid of a flash light discovered that the seal on the river side of the car had been broken and the door was open. No investigation of the interior was made at that time, but the door was closed and resealed, and on an examination made later it was discovered that many of the packages in the car had been broken open. It was about 300 feet from this car to the place where Wells' body was found. In Wells' pockets were his Colt automatic revolver and his flash light, both bloody, and his handkerchief was also bloody. In the magazine of his automatic revolver were six unexploded shells, Winchester make, known as .32 automatic cartridges, having metalcased bullets; the metal case composed of nickel, lead and copper. A bullet of the same kind was removed from the body of the plaintiff in error, a circumstance which will be referred to hereafter. In the immediate vicinity of car No. 34476, within a radius of 15 or 20 feet, 12 exploded .32 automatic cartridges were found, 3 of which were the kind in Wells' revolver, and 9 Remington make, the kind that were afterward found in the pocket of the plaintiff in error's coat. The bullet which killed Wells and went through his body was not found. The surgeon who made the autopsy could not determine whether the hole was made by a .32 or a .38 ball. Either might have made it. Wells' revolver, when fully loaded, carried 9 shells. Either the Winchester or Remington make of shells could have been used in his revolver.

The plaintiff in error testified that he was 23 years old, unmarried, and living with his parents at 1427 Garden street, in Peoria, and on the night of December 2, 1921, was at the Garden Theater with Walter Matthews. Afterward they went to the B. & O. pool room, and Kircher left there between 10 and 11 o'clock for home. About that time some one came to the house and said there was a telephone call waiting for Kircher at 1401 Garden street, where he had been just before going home. He answered the call, had a conversation over the telephone, and went back home. The next morning—at what hour he did not know—he went to Cass street, and down that street to the railroad tracks. He had been in the automobile business, and he did this in response to the telephone call of the night before, which he testified to. He found an automobile on Cass street, within 15 or 20 feet of the railroad track. The call was to go down there and either take the car home or start it. He tried to start the car, and found that possibly he could help himself by getting a piece of wire, so he went over to the railroad track and found some wire there. While he was stooping over to pick up the wire and had it in his hands, some unknown man shot him. He did not know how many shots were fired. He truned and went up Cass street to Adams street and to Rogers' restaurant. The car he went to repair was a Ford car. It was taken away, and he could not trace it. He did not know whose it was, or who called him. He did not know what time it was when he went down to where the car was, but it was dark and he did not have a flash light there.

The evidence of the plaintiff in error's connection with the homicide is altogether circumstantial, except certain statements which witnesses testified upon the trial he had made. About 5:30 in the morning the plaintiff in error came to the restaurant of Warren Rogers, on South Adams street, seven or eight blocks from the freight house, and asked for a bed, saying he was shot and wanted a doctor. The employee there went upstairs to call another employee to help, and Kircher followed him up and dropped down on the bed, which the employee got our of. A physician was called on the telephone. Dr. Maurer arrived a few minutes before 6 o'clock, and Kircher was removed to the St. Francis Hospital. He was found to be very seriously wounded. Dr. Whitten arrived there about 7 o'clock in the morning. He dressed his wounds, sent him to the Xray room, and ordered an injection of a fourth of a grain of morphine. The doctor accompanied him and he reached the ward about half-past 8. Kircher was suffering and his physical condition at that time was extremely bad, both because of the shock and the loss of blood. There was a mental depression due to the same reasons, and some sluggishness, due to the administration of morphine. The doctor did not remain long, but came back about 11 o'clock. He met the prosecuting attorney, the coroner, and the the chief of police coming out of the hospital, and he went directly to Kircher's bed in the hospital. He testified that Kircher's condition and mentality at that time were much worse than at eight o'clock. Physically it was so bad that the doctor feared he was going to die and called the chief of police to tell him so. His mental condition was also much worse, and the doctor did not think he could live more than two or three hours. The doctor testified that the morphine given under his direction was given at about 7:30 o'clock, but the hospital chart did not show it. It did show a fourth of a grain given at 6:30, and an eighth of a grain at 2:30.

The chief of police came to see Kircher in the morning between 8 and 9 o'clock. Kircher was asleep, or under the influence of an opiate, and he die not talk with him. He came back about 11 o'clock, and woke Kircher up, and had some conversation with him, and about 1:30 o'clock returned again and questioned him in regard to the occurrence of the night before, and in answer to questions he gave an account of his connection with the homicide. On the second visit the chief of police was accompanied by the coroner and the state's attorney, and on the third visit by the state's attorney and Oscar L. Mayberry, a special agent for the Chicago, Burlington & Quincy Railroad Company. No stenographer was present, and those present, with the exception of the state's attorney, who did...