People v. McLaughlin

• Decision Date: 20 December 1929
• Docket Number: No. 19052.,19052.
• Citation: People v. McLaughlin, 337 Ill. 259, 169 N.E. 206 (Ill. 1929)
• Parties: PEOPLE v. McLAUGHLIN.
• Court: Illinois Supreme Court

337 Ill. 259

169 N.E. 206

PEOPLE

v.McLAUGHLIN.

No. 19052.

Supreme Court of Illinois.

Dec. 20, 1929.

Error to Criminal Court, Cook County; John P. McGoorty, Judge.

Eugene McLaughlin was convicted of assault with intent to commit robbery, and he brings error.

Reversed and remanded.Harrington, Golan & McDonnell, of Chicago (Joseph T. Harrington, of Chicago, of counsel), for plaintiff in error.

Oscar E. Carlstrom, Atty. Gen., Robert E. Crowe, State's Atty., of Chicago, and James B. Searcy, of Springfield (Edward E. Wilson and John Holman, both of Chicago, of counsel), for the People.

DE YOUNG, J.

Eugene McLaughlin was indicted in the criminal court of Cook county for an assault upon Walter J. Neumann with intent to commit robbery. A jury found McLaughlin guilty of the charge and he was sentenced to the penitentiary. By this writ of error he seeks a review of the record.

On March 22, 1926, Walter J. Neumann, a salesman employed by W. R. Neumann & Co., wholesale jewelers, left the firm's place of business at Chicago, in an automobile bound for South Bend, Ind. He had in his custody two cases containing jewelry worth approximately $50,000. When he reached Thirty-First street on South Parkway, the traffic signal obliged him to stop. At this point, according to Neumann's testimony, the plaintiff in error, approaching from the rear, jumped on the left running board of the automobile, opened the door, took from his overcoat a revolver, pointed it at Neumann's side, and in profane language commanded him to move to the right. Neumann shouted and screamed, and a struggle ensued, in which the plaintiff in error gained the driver's seat. When the signal was changed, permitting south-bound traffic to proceed, he drove the car across the intersecting street, but Neumann succeeded in stopping it at the curb. A police officer, who had observed the struggle between the two men, approached, drew his gun, and ordered the plaintiff in error out of the automobile. Plaintiff in error was searched, but no weapon was found in his possession. While the search was in progress, Neumann ran back to the car and remarked, ‘Let me get my gun, and I will blow his head off.’ Neumann obtained the revolver, flourished it, and finally pointed it toward the police officer, who promptly disarmed him. A crowd gathered, and Neumann and the plaintiff in error were taken to a police station. At the time of his arrest, the plaintiff in error, speaking of the assault, said to the police officer, ‘There is nothing to it. It is just an argument.’ On the trial Neumann testified that he had not determined upon the streets in the city over which he would drive when he left his employer's place of business, and that no person knew the route he would follow; that the gun which he took from his automobile did not belong to him, but that it was the weapon which the plaintiff in error used in making the assault. The police officer, called by the prosecution, testified that, when Neumann went to his automobile for the revolver, he referred to it as ‘my gun’; that he (the officer) first saw the revolver in Neumann's hands; that it was loaded; and that Neumann said nothing about jewelry until after he reached the police station.

[1] Many errors are assigned and argued by the plaintiff in error. One is that the cross-examination of the police officer, a witness for the prosecution, was unduly restricted. Counsel for the plaintiff in error sought to elicit from him that the latter, while on the way to the police station, said, in explanation of the assault, that Neumann had been ‘playing around’ with his wife. An objection to the question was sustained. When the alleged statement was made, not only had the struggle between Neumann and the plaintiff in error ended, but they had been separated and were being conveyed to the police station in different automobiles. The statement was not so intimately connected with the assault as to indicate that it was made without premeditation or with no purpose of self-ex-culpation. A self-serving declaration, not so intimately interwoven with the principal fact or event that it may be regarded as a part of the transaction itself, and made after opportunity for premeditation is afforded, is not admissible. People v. Jarvis, 306 Ill. 611, 138 N. E. 102;Lander v. People, 104 Ill. 248.

It is next contended that the trial court erred in allowing the prosecution to impeach two of its witnesses. The first had testified on direct examination that his attention was attracted to the occurrence at South Parkway and Thirty-First street by some person shouting. He was then asked whether shortly after the assault he had signed a statement in which he said that he heard Neumann call for help. He answered that he did not hear him call for help, but heard him shout. The question was repeated in a form somewhat different, and the witness answered that he did not remember what he had said two years before. The statement was produced, and, after reading it, the witness admitted that he had signed it. He was then asked whether he recollected stating that he heard Neumann call for help, and he was permitted to answer over an objection by the plaintiff in error that, since the assertion appeared in the statement, he must have made it. A similar situation developed during the examination of the second witness. He was asked by the assistant state's attorney whether he had heard any conversation in which the plaintiff in error engaged at the time of the occurrence in question. He answeredthat he recollected no such conversation. He was then asked whether he had exhausted his recollection concerning utterances by the plaintiff in error at the time, and he answered that the period which had elapsed since the occurrence was too long for him to remember what the plaintiff in error had said. To refresh the recollection of the witness, the assistant state's attorney then asked him whether, at the time in question, when his car stood in front of Neumann's automobile, the plaintiff in error said to him, ‘Let us by. He is having a fit.’ The answer was in the negative. Upon further interrogation, the witness admitted that he had signed a written statement at the police station, and the statement was produced. Parts of it, the witness testified, refreshed his recollection, but he added that two years had elapsed since he signed it, that, when the statement was made, the occurrence was fresh in his mind, and that he then told what he had seen and heard. Each of these two witnesses was merely given an opportunity to refresh his memory. If a witness gives testimony which differs from a previous statement made by him, so that his testimony is a matter of surprise to the party calling him, the latter may direct his attention to the former statement for the purpose of refreshing his memory or awakening his conscience. People v. Cotton, 250 Ill. 338, 95 N. E. 283;People v. Lukoszus, 242 Ill. 101, 89 N. E. 749. The trial judge is, to a great extent, enabled to determine the propriety of such questions from the appearance and manner of the witness, and permission to ask them should be left largely to the judge's discretion. People v. Cotton, supra. That discretion, it appears, was properly exercised in the present case.

Another contention is that the trial judge made remarks during the direct examination of Newmann which were prejudicial to the plaintiff in error. Neumann was asked whether at the time of the assault he had a gun in his possession. A general objection to the question interposed by counsel for the plaintiff in error was overruled, and the witness answered in the negative. Counsel then explained his objection by stating that the question was leading and called for a conclusion. The assistant state's attorney, addressing c...