People v. Krauser

• Decision Date: 17 February 1925
• Docket Number: No. 16071.,16071.
• Citation: 315 Ill. 485,146 N.E. 593
• Parties: PEOPLE v. KRAUSER.
• Court: Illinois Supreme Court

315 Ill. 485

146 N.E. 593

PEOPLE

v.KRAUSER.

No. 16071.

Supreme Court of Illinois.

Feb. 17, 1925.

Error to Criminal Court, Cook County; Oscar Hebel, Judge.

Walter Krauser was convicted of murder, and he brings error.

Reversed and remanded.

Farmer and Thompson, JJ., dissenting.Willard M. McEwen, of Chicago, for plaintiff in error.

Edward J. Brundage, Atty. Gen., Robert E. Crowe, State's Atty., of Chicago, and Edward C. Fitch, of Springfield (Edward E. Wilson and Clyde C. Fisher, both of Chicago, of counsel), for the People.

DUNN, J.

Walter Krauser was convicted in the criminal court of Cook county of the murder of Ralph S. Souders, his punishment was fixed at death, and he was sued out this writ of error.

David W. Glass was manager of a store of the Atlantic and Pacific Tea Company at No. 5361 South Morgan street, in Chicago. He opened the store on December 19, 1922, at 7:30 in the morning. Ralph Souders, a police officer in plain clothes, who had been assigned as guard to watch the place, came about ten minutes later. The store was on the corner of Fifty-Fourth street. It was about 23 feet wide, and faced west on Morgan street. The entrance to the store was at the corner, facing southwest. Along the north wall were shelves and a counter. The cash register was near the center of the north wall. A partition about 7 feet high extended across the east end of the room, forming a room about 7 feet wide, whose length was the width of the store, which was used as a storeroom. Between 8:30 and 8:45 o'clock the plaintiff in error entered the store. He was followed immediately by another man, Bernard Grant. Souders was at that time in the back room. The plaintiff in error, with a revolver, walked up to Glass and told him to put up his hands. Glass did so. Grant went behind the counter to the cash register. About $20 was taken from it. The plaintiff in error told Glass to go to the back room, and as Glass did so the plaintiff in error told Souders to put up his hands. Souders put up his hands and walked slowly toward plaintiff in error, who said, ‘Keep them up; that is the law.’ The plaintiff in error called to Grant to come and ‘get the copper's gun,’ but before Grant could do it Souders made a spring for plaintiff in error's hand, and a struggle for the gun began. Souders was broad-shouldered, 5 feet 8 or 9 inches tall, and weighed about 175 pounds. He was between Glass and plaintiff in error, so that Glass could not see exactly what occurred. A shot was fired. Glass got behind some boxes, and then there were two more shots in rapid succession. After the third shot Glass heard the two robbers run from the store. He got up and found Souders lying on the floor. Two of the shots had taken effect on him. One had entered the abdomen, three inches below and two inches to the left of the navel, and had passed to the left under the skin for five inches, and imbedded itself in the muscles on the left side. The other entered two inches below and two inches to the left of the right nipple, passed through the heart and left lung and out between the fourth and fifth ribs at the back. The clothing and flesh around the point of entrance into the body of the latter wound were powder-burned. There were no powder burns around the former wound.

As he ran, the plaintiff in error discarded his overcoat a short distance from the store. It was picked up a few moments later. A bullet had passed through the right sleeve, which was still smouldering where it was powder-burned. The bullet entered the sleeve about nine inches from its edge, went through the muscle of the arm of the plaintiff in error, and out the sleeve about six inches from its edge and four inches back of the point of entrance. The revolver which was used was lying partly under Souders' body as he lay on the floor. Grant and the plaintiff in error lost their caps in the fight, and left them as they fell. The three shots were from the revolver which the plaintiff in error had in his left hand. Souders' revolver was not withdrawn from its holster. From the fact that two of the shots resulted in powder burns and one did not, and that one of the two which showed powder burns caused a superficial wound to the plaintiff in error and the other a fatal wound to Souders, it may be reasonably surmised that Souders grasped for the gun and succeeded in turning it sufficiently to cause the wound in the arm of the plaintiff in error. Souders was then pushed back so far that there were no powder burns from the second shot, which struck him in the abdomen, and then, closing in, he was shot through the heart at close quarters, or it may be the second shot went through his heart, and the third, which followed immediately, struck him in the abdomen as he staggered back. Whatever was the sequence, Souders was shot and killed as he struggled with the two robbers.

The plaintiff in error was arrested at about 2 o'clock in the morning of December 20. He was in bed in a room in the Dover Hotel, where he had registered as Joe Brady. The Dover Hotel is nine or ten miles from the scene of the crime. His arm was wounded, and had gauze and iodine on it. He was unable to employ an attorney, and the court appointed counsel to defend him. The defense was that the plaintiff in error is feeble-minded, lacking mental capacity, and not criminally responsible.

The plaintiff in error was 19 years old in December, 1922. His mother testified about him:

‘Remember him getting up in middle of night and getting phonograph horn. He used to do all kinds of foolish things around house. He used to sing and holler and talk to himself at night. If he had any excitement in daytime, you could always hear at night whatever he done in daytime. He always was nervous. He used to bite fingernails, pull his nose, and seemed to sit and dream. He never took interest in books. I asked him to look at something in the paper, and he couldn't find it, and asked me to find it for him. He would look at jokes and enjoy anything silly or playful. He liked people younger than himself, but would be nice in company—no bad language. He done so many peculiar things I can't remember half of them. I have an automobile which stands all propped up in the shed. I haven't taken it out for two years. I wouldn't let him run it. He would get up in the seat and take little Benny with him, and would turn the wheels and imagine he was going, and clank the horn and make a noise. He used to do that every day in summer time. When I asked him to chop wood he would go down and chop maybe one piece and throw the ax in one corner and the piece of wood in another. He would never finish it, but would leave it laying there, and never bring it up. And with coal the same way. He'd say it was too heavy; he couldn't carry it; it hurt his back.’

It also appeared that some one dropped a stone on his head when he was seven or eight years of age, making a big cut and hurting him seriously. Later he was stabbed in the back by another boy. His mother testified:

‘He had headaches right along, always, but after he was stabbed he had headache every day. He was laid up a long time after that, walked sideways, dragged himself. He was stabbed pretty bad, and lost an awful lot of blood. I gave him bromo-seltzer most of the time for headaches. He got used to it, and could take it three or four times a day. It seemed to help him. * * * I let him have it for four of five years, if not longer.’

She testified the plaintiff in error graduated from the eighth grade at school. His first job was as errand boy when he was 14 or 15 years old. He quit because he always got dizzy, and couldn't stand the work. His brother, Charles, testified of the plaintiff in error:

‘Walter used to act kind of peculiar around the house. He played with children on the street far below his age. He played on their bicycles; played ball with them; marbles and all kinds of childish games. He used to act kiddish and foolish. He used to pick his nose and was always nervous. It seems to me a person in his right mind wouldn't do those things. My wife and I stayed at mother's house one night, and my brother came in with a shoe in each hand. At a different time he took the horn off the graphophone and started to sing through it. There was no reason for him taking his shoes off to come into the house. He sang through the graphophone in early hours of morning when everybody else was in bed. I called to him to go to bed and stop the noise. He said some day he is going to be a singer on the stage. He would be solemn, not talk to anybody, sit on a chair, get up and go into next room, go down in front of the house and come back again, and keep doing it. I don't think a person in his right mind would keep on doing these things.’

Other witnesses also testified of the habits and peculiarities of the plaintiff in error. His mother testified:

‘I used to send him to the store. I sometimes gave him money to buy something, but not much. I was afraid he wouldn't bring things right. I could trust him. He would never take any money from me.’

Mrs. Krauser's brother, Louis, was insane and died at Dunning Hospital. Emma, the daughter of another brother, Herman, is feeble-minded. Herman was not much brighter than his daughter. Others of the family also lacked normal intelligence. Radio pictures of the skull of the plaintiff in error are in evidence. They show a thickening over the back of the occipital bone, encroaching somewhat upon the space that should be occupied by the part of the brain known as the cerebellum. The cerebellum has to do with the co-ordinating of impulses received from the rest of the brain. It has nothing to do with reason or judgment. The thickening of the bone at the back of the skull was probably the result of the blow which the plaintiff in error received on his head when he was seven or eight years of age. He was accustomed to the taking of large and frequent doses of bromo-seltzer. The prolonged and...