People v. Lowhone

• Decision Date: 08 April 1920
• Docket Number: No. 12984.,12984.
• Citation: 292 Ill. 32,126 N.E. 620
• Parties: PEOPLE v. LOWHONE.
• Court: Illinois Supreme Court

292 Ill. 32

126 N.E. 620

PEOPLE

v.LOWHONE.

No. 12984.

Supreme Court of Illinois.

Feb. 18, 1920.

Rehearing Denied April 8, 1920.

Error to Circuit Court, White County; Julius C. Kern, Judge.

Frank Lowhone was convicted of murder, and he brings error.

Reversed and remanded.

Thompson and Cartwright, JJ., dissenting.

F. M. Parish and Ivan A. Elliott, both of Carmi, for plaintiff in error.

Edward J. Brundage, Atty. Gen., Joe A Pearce, State's Atty., of Carmi, and Albert D. Rodenberg, of Springfield, for the People.

FARMER, J.

Plaintiff in error, Frank Lowhone, shot and killed Mack Nottingham April 4, 1919, in the city of Carmi, White county, Ill. He was indicted for murder, tried, found guilty, and sentenced to death. This writ of is sued out by him to review the judgment.

The killing is admitted. The defense was insanity. The plaintiff in error had lived in Carmi since he was about 9 or 10 years old. Before he went to Carmi, he had lived with his mother on a farm near there. He was a laborer, and worked at various kinds of employment and for various persons for a livelihood. In October, 1918, he received employment at a coal mine at Benton, Franklin county, Ill.,where he worked until about the 1st of April, 1919. The day before the homicide he, with his family, returned to Carmi. He had gone to Carmi without his family about 2 or 3 days before, but returned to Benton with his wife, who came after him, and the family all went to Carmi April 3. Plaintiff in error and deceased had been acquaintances and friends some years. They had worked together for the same employer, and so far as disclosed by the record there had never been any trouble or disagreement between them. John Bachman, an acquaintance of both men, testified that about an hour before the homicide he met the plaintiff in error on the street and they engaged in a friendly chat; each inquiring of the other how he was employed. Bachman said he had been baling hay, and plaintiff in error said he had been working at a coal mine. While they were engaged in conversation, Nottingham joined them. He and plaintiff in error shook hands, and plaintiff in error asked Nottingham whether he was still working at baling straw, which was a job they had worked together on about 2 years before. Nottingham replied he had quit that job a little while after plaintiff in error quit it, and had since been working for a farmer, George Chapman. Plaintiff in error said he could not work for a better man, to which Nottingham agreed. After some further friendly talk the plaintiff in error said he was going across the river, and he left Bachman and Nottingham, who continued talking some 10 or 15 minutes, then walked to the next street corner together, where they separated. Very shortly afterwards Nottingham was sitting on a bench in front of Hubele's store. The bench was at the outer edge of the sidewalk, and he sat facing the store.

H. C. Fulkerson testified he was about 200 yards from the store and heard a shot fired. On looking in that direction, he saw Nottingham rise up in a protecting position and start running; plaintiff in error following and shooting. Two shots were fired in front of the store. They ran around the store toward the rear, and plaintiff in error continued shooting. Altogether four or five shots were fired. Witness saw plaintiff in error returning towards the front of the store, reloading his revolver. The street in front of Hubele's store runs east and west. Oscar A. Nelson testified he came from a short distance east of the store past it. Nottingham was sitting on the bench in front of the store. While witness was walking in that direction he saw plaintiff in error probably 50 yards behind him, going in the same direction. After witness had passed beyond the Hubele store he heard a shot, and turning around saw Nottingham running and plaintiff in error after him, shooting. They passed out of witness' sight, and he heard two more shots. He saw plaintiff in error come back towards the courthouse, which was about 50 yards west of Hubele's store, and meet the sheriff. Witness understood the sheriff to ask if he hit the person he was shooting at, and plaintiff in error to answer that he did not know, but thought he did; that he was shooting at him. He appeared to be greatly excited.

Cyril Endicott was in front of the courthouse, about 50 yards from Hubele's store, when the shooting began. When he heard the report of a gun, he looked and saw the plaintiff in error about the middle of the sidewalk. Nottingham was running sideways from him, and another shot or two was fired. Witness saw plaintiff in error come back from the direction the parties had run and start to reload his gun.

Frank Martin was in the courthouse when he heard three shots fired. As he went to the front door, he heard two more shots. Looking east, he saw plaintiff in error walking west, with his head down, reloading his gun. Witness and the sheriff reached him about the same time. The plaintiff in error handed his gun to the sheriff and said, ‘Here it is; I meant to give myself up.’ Witness asked him what was the matter, and he replied, ‘Oh! they have been running over me around here; trying to run me out of town, and one thing and another.’ Witness asked plaintiff in error, ‘Did you kill him?’ and he answered, ‘I hope I did, the damn son of a bitch.’ Witness then asked who it was, and he said, ‘Nottingham.’ He seemed excited.

Thomas Brown, whose attention was attracted by the report of a gun, gave about the same account of it as other witnesses.

Charles Gibbs, the sheriff, testified he was in the back yard of the courthouse when he heard a shot fired, and in a little while two more. He went around the courthouse, and met plaintiff in error about 30 feet east of it. He had a revolver in his hand, and it looked like he was reloading it. Witness took the gun, and inquired what the trouble was, but could not remember his answer. Witness asked at whom he was shooting, and he said, ‘Nottingham.’ Witness inquired if he hit him, and he replied he did not know; that he hoped he had. The sheriff put him in jail, and afterwards, when he took his meals to him, plaintiff in error inquired how Nottingham was getting along and how many times he hit him. Witness told him Nottinghamwas hit three times, once in the breast, once in the hand, and once in the thumb. Plaintiff in error said he ‘guessed the shot that went through his hand went into his breast, as he threw his hands up when he was shot.’ Nottingham died the next day after the shooting, from the effects of the wound in the breast.

No testimony was offered on behalf of plaintiff in error, except on the question of his sanity. His brother, Tom Lowhone, testified he was a barber, and lived in Fairfield, and was working there during October, 1918. On the 26th of that month he received a longdistance telephone call from his sister, Estella, who was married and lived in McLeansboro. He went there the next day, and at the depot there met plaintiff in error and asked him what was wanted. Plaintiff in error said he would tell him, and they went into the toilet at the station. Plaintiff in error asked witness if he was going to Carmi, and on being answered in the affirmative he told witness not to go there that day, as they would get him sure; that they were waiting there for him. Witness told him no one was waiting for him, and inquired what was the matter with plaintiff in error, and he said, ‘You will see; if you go to Carmi to-day, they will get you sure.’ He wanted to know when he could see witness, and was told he could see him any time. He said he would go home with his brother, but on being invited to do so refused, and said, ‘They will meet me, and they will kill me, if I go back over there.’ His brother inquired whom he meant, and he said, ‘The gang around there.’ His brother told him he was dreaming-that there was no gang around there. He finally agreed to meet his brother next day at Enfield. Tom came to Enfield on the train next day, and the plaintiff in error met him, and together they went on to Carmi, where they took the train for Mt. Carmel. Tom testified that on the trip plaintiff in error would talk silly and say, ‘They have got it in for me, and somebody has told them about us coming up on the train.’ He would talk foolish, and sit and twist his fingers. When they left the train at Mt. Carmel, he asked his brother a number of times if he did not think they had telephoned over there and were after him, and his brother assured him no one was after him and asked him to keep quiet. They went from Mt. Carmel to Fairfield, and plaintiff in error sat in the shop where his brother worked until supper time, when they went togetner to supper. After the shop was closed in the evening, they went to see about getting plaintiff in error a job in a laundry. They then went to the hotel where Tom boarded and went to bed. Some time after midnight plaintiff in error woke his brother up and said, ‘Don't you hear them around this window? Don't you hear them talking?’ His brother tried to quiet him and get him to go to sleep. Later in the night plaintiff in error woke his brother again, and the brother got up, opened the door, and convinced him there was nobody there. After breakfast they went together to the barber shop, and about 10 o'clock the plaintiff in error said he was going to leave there. His brother advised him to stay and see about getting a job, but plaintiff in error said somebody had telephoned there about him and he was going to leave; that he wanted to go to Benton. His brother bought a ticket for him to Mt. Vernon, and told him to take a hack at the station there and drive to the Chicago & Eastern Illinois Railroad station. He left Fairfield, and his brother did not see him again until after the homicide. On the train on the way to Fairfield, plaintiff in error's brother asked him what people had it in for him, and the said the...