People v. Klein

• Decision Date: 08 December 1922
• Docket Number: No. 14634.,14634.
• Citation: 305 Ill. 141,137 N.E. 145
• Parties: PEOPLE v. KLEIN.
• Court: Illinois Supreme Court

305 Ill. 141

137 N.E. 145

PEOPLE

v.KLEIN.

No. 14634.

Supreme Court of Illinois.

Oct. 21, 1922.

Rehearing Denied Dec. 8, 1922.

Error to Circuit Court, Du Page County; C. F. Irwin, Judge.

Jacob Klein was convicted of murder, and he brings error.

Affirmed.Migbell, Gunsul & Allen, of Aurora, Charles W. Hadley, of Wheaton, and G. H. Bunge, of Chicago, for plaintiff in error.

Edward J. Brundage, Atty. Gen., C. W. Reed, State's Atty., of Naperville, and George C. Dixon, of Dixon (T. H. Slusser, of Chicago, and Russell W. Keeney, of Naperville, of counsel), for the People.

STONE, J.

Plaintiff in error was convicted of the murder of Leo E. Neumann. The circuit court of Du Page county entered judgment on the verdict, sentencing plaintiff in error to the state penitentiary for a period of 14 years. The cause is brought here for review.

The killing is admitted. The only question of fact in the case is whether it was accidental, or whether under circumstances showing it to have been murder. About 8:30 o'clock on Sunday evening, September 25, 1921, the deceased, his wife and daughter, with Gust Vorreyer and his wife, were riding east in a one-seated runabout automobile on the public highway near Downers Grove, in Du Page county. On the day previous they had driven from their homes in Chicago to the home of Ed. Schrader, in Will county, and were returning to Chicago through the neighborhood in which plaintiff in error resided at the time the killing took place. The undisputed evidence shows that the defendant, who was a deputy sheriff of Du Page county, was walking west on the highway toward his home when the machine in which deceased was riding passed him, going east. At the time the machine passed him on the road he shouted for the driver to stop, and, pulling a gun, fired a shot through the back of the car, the bullet striking the deceased between the eleventh and twelfth ribs, at the right side of the spine, and penetrating to the outer wall of the abdomen. The machine was stopped in front of the house of Ted Shurn, which, according to the testimony of plaintiff in error, was less than 300 feet from the place where he was standing at the time the shot was fired. Mrs. Vorreyer, who was a sister-in-law of the deceased, was seated on his lap in the car on the right side, holding to the right door of the car. When the deceased was shot his body stiffened under the shock, causing her to lose her balance and fall out of the car. At the time the car stopped she lay at the roadside, near the rear part of the car. The occupants of the car called for help, and aroused the Shurns, who came to their assistance, and the deceased was taken from there to the residence of William F. Andermann and from there to the Hinsdale Sanitarium, where he died while on the operating table.

There is, as we have said, no denial of the killing, but plaintiff error contends that it was accidental; that he saw the lights of the machine in which the deceased was riding coming toward him at a high rate of speed; that he stepped into the road in front of it, when it was about 100 feet away, and shouted to the occupants to halt, at the same time showing his official star; that they nevertheless came on, and as they swerved around him he stepped to one side and the machine passed him, going at a high rate of speed; that he drew his pistol and turned and fired a shot into the air as a warning for them to stop; that the machine did not stop, but continued on over the hill, past Shurn's place; that he heard no sound, and went on home; that a short time after he had reached home a neighbor called him and told him that a man had been shot out on the road in front of Shurn's, and he replied that some speeders were going by, and that he shot in the air to warn them, and it may be that he hit one of them, although he did not think so. Plaintiff in error also testified that the car was a considerable distance past him, going up the hill in front of Shurn's house, when he fired.

The circumstances surrounding the killing and the motive of plaintiff in error in firing the shot are the only controverted questions. The testimony for the state, given by four of the occupants of the car, is that they were not traveling at a high rate of speed; that the road was rough; that there were five of them in this one-seated roadster, which was an old car, built in 1913; that they, in addition, had a quantity of eggs and milk in the back of the car which were not damaged by the travel; that they saw a large man, whom they afterwards identified as the plaintiff in error, step out into the road when they were within about 50 feet of him, and heard him shout as the car was passing, ‘Hey!’ or ‘Halt!’ that almost immediately thereafter the shot was fired. Some of the occupants of the car testified that they saw the flash of the gun. The bullet passed through the upholstered bank of the seat of the car just above the metal part of the body, and the autopsy showed it passed almost through the body of the deceased in a practically horizontal line, with a very slight inclination upward. Numerous witnesses called for the state testified that the plaintiff in error on that night stated in the presence of officers who had been called there, and of others, that the car was coming toward him at a terrific rate of speed; that he called to the occupants to halt, and when they did not do so he took a shot at them. Some of the witnesses testified that he said he shot into the car; others testified that he said he shot at them; one witness for the state testified that he said, ‘When the speeders don't stop you know what they get;’ another testified that he said, ‘It took just one shot to get him.’ This is in contradiction of his testimony that he shot in the air as a warning for the occupants of the car to stop. The evidence as to his statements concerning the manner of his shooting was conflicting. Some of the witnesses for the defense contradicted the testimony of witnesses for the state concerning such statements, and testified in corroboration of plaintiff in error.

Plaintiff in error assigns numerous errors on the record. He contends that the verdict is contrary to the weight of the evidence, and that the court erred in giving and refusing instructions and in the admission of testimony. Concerning the first objection, the issue was whether or not the plaintiff in error was justified in firing the shot as he did, or whether the act was done with a reckless disregard for human life, which makes the offense murder. The evidence in the record on this point is conflicting. Plaintiff in error testified that the car disappeared over the hill after he fired the shot, and that he went on home because he supposed it had left; that he did not hear a sound. The testimony of Mr. and Mrs. Shurn was that they heard the shot, and although one of them was in the house and the other was over 200 feet from the road, they heard screaming and calls for help. The occupants of the car testified to the screaming of the women of the party, and also that they called to the party who did the shooting to come and help them, that a man was shot, but that he did not come. The greater weight of the evidence shows that the car in which the deceased was riding stopped in front of the driveway into Shurn's place, which is near the top of a rise of ground less than 300 feet from where the plaintiff in error said he was standing. The summit of the rise of ground, as appears from the record, is a short way beyond the roadway into Shurn's place, where the car stopped. Plaintiff in error testified that the lights of the car were burning. This was also testified to by others, who saw the car after the shooting. Plaintiff in error does not explain how it happened that he did not hear the screaming for help nor see the car, as it stood less than 300 feet from him, on his side of the rise of ground. These circumstances argue most potently against the contention of plaintiff in error that he was attempting to make an arrest. Had such been his purpose, the natural thing for him to have done would have been to go to the car after it had stopped, for the purpose of arresting the driver. It does appear that when he received a telephone call saying that a man had been shot, he said that the man may have been in the machine that he tried to stop on the road.

The question of the motive of plaintiff in error in firing the shot was one of fact for the jury to decide, and we cannot say that they were not justified in deciding that he was not engaged in the discharge of his duties as an officer at the time he fired, but that such was an illegal act. Even though it were to be conceded that the evidence shows that the shooting was not done in reckless disregard of human life, but in an attempt on the part of the accused to make an arrest, there wan no justification for his firing his gun for such purpose. The offense, if one was being committed by the deceased and his companions, was but a misdemeanor. An officer, generally, may use a deadly weapon, even to the extent of taking life, if necessary to effect the arrest of a felon, for the reason that the safety of the public is endangered while such felon is at large; but the rule, by the great weight of authority both in this country and in England, is, that except in self-defense an officer may not use a deadly weapon or take life to effect an arrest for a misdemeanor, whether his purpose is to kill or merely to stop the other's flight. This is true, even though the offender cannot be taken otherwise.State v. Smith, 127 Iowa, 534, 103 N. W. 944,70 L. R. A. 246, 109 Am. St. Rep. 402,4 Ann. Cas. 758;State v. Sigman, 106 N. C. 728, 11 S. E. 520; Conraddy v. People, 5 Park. Cr. R. (N. Y.) 234; Commonwealth v. Loughhead, 218 Pa. 429, 67 Atl. 747,120 Am. St. Rep. 896; Forster's Case, 1 Lew. C. C. (Eng.) 187; 5 Corpus Juris, 426; Wharton on Homicide (3d Ed.) § 500.

It is objected that ...