People v. Moore

• Decision Date: 15 April 1938
• Docket Number: No. 24217.,24217.
• Citation: People v. Moore, 368 Ill. 455, 14 N.E.2d 494 (Ill. 1938)
• Parties: PEOPLE v. MOORE.
• Court: Illinois Supreme Court

368 Ill. 455

14 N.E.2d 494

PEOPLE

v.MOORE.

No. 24217.

Supreme Court of Illinois.

April 15, 1938.

Error to City Court of East St. Louis; William F. Borders, Judge.

Lucille Moore was convicted of murder, and she brings error.

Affirmed.Lindauer & Lindauer and A. B. Davis, all of Belleville, for plaintiff in error.

Otto Kerner, Atty. Gen., Louis P. Zerweck, State's Atty., of Belleville, A. B. Dennis, of Danville, and R. V. Gustin, of East St. Louis, for the People.

ORR, Justice.

Lucille Moore and Richard Shaw, both colored persons, for some years had lived together as husband and wife in East St. Louis. On January 30, 1937, she shot and killed Shaw, while he was gambling, because of his alleged refusal to give her money. A jury in the city court of East St. Louis found her guilty of murder and sentenced her to imprisonment for ninety-nine years. She seeks reversal by writ of error.

The first error assigned is an attack upon the legal sufficiency of the indictment. The essential portion thereof necessary for a proper understanding of the alleged error follows: ‘That Lucille Moore, * * * in and upon the body of one Richard Shaw, * * * did then and there make an assault; and that the said Lucille Moore, * * * a certain revolver, * * * which said revolver she, the said Lucille Moore, * * * did discharge and shoot off, to, against and upon the said Lucille Moore, * * * then and there * * * did wound * * * Richard Shaw, * * * giving him, the said Richard Shaw, * * * one mortal wound, * * * of which said mortal wound he, the said Richard Shaw, * * * died.’

The sufficiency of the remaining phraseology of the indictment is not questioned. Defendant, because she is charged with shooting herself, declares she should have her case reversed without remandment, because prosecution for a crime cannot be founded upon an indictment which does not charge one. It is true that an indictment must allege all facts necessary to constitute the crime charged and must do so with sufficient certainty. People v. Trumbley, 252 Ill. 29, 96 N.E. 573. If it does not do so, a conviction thereunder will not be sustained. People v. Snyder, 279 Ill. 435, 117 N.E. 119;People v. Stoyan, 280 Ill. 300, 117 N.E. 464;People v. Picard, 284 Ill. 588, 120 N.E. 546. The Criminal Code declares an indictment shall be sufficiently technical and correct when it states the offense, either in the language of the statute creating the offense, or so plainly that the nature thereof can be easily understood by the jury. Smith-Hurd Stats. c. 38, § 716, Ill.Rev.Stat.1937, c. 38, § 716. An indictment is specific enough if it notifies the defendant of the charge he must meet, so he may prepare his defense. People v. Green, 362 Ill. 171, 199 N.E. 278. A variance will not be regarded as material in an indictment unless of such substantial nature as to mislead the accused in making his defense, or expose him to a second jeopardy for the same offense. People v. Schnepp, 362 Ill. 495, 200 N.E. 338;People v. Boneau, 327 Ill. 194, 158 N.E. 431. Where the charge is murder by shooting, the indictment will be legally sufficient if it charges the defendant on a certain day unlawfully and with malice aforethought did kill the victim by shooting. People v. Corder, 306 Ill. 264, 137 N.E. 845. An averment in an indictment may be treated as surplusage, and rejected, if it can be stricken out without vitiating the indictment, where the remaining averments are sufficient to inform the jury and the defendant of the nature of the charge. People v. Corder, supra; People v. Saltis, 328 Ill. 494, 160 N.E. 86;People v. Wood, 318 Ill. 388, 149 N.E. 273.

Leaving out of consideration that portion wherein defendant is charged with shooting herself, the indictment charges: ‘That Lucille Moore, * * * in and upon the body of Richard Shaw, * * * did then and there make an assault; and that the said Lucille Moore * * *, a certain revolver, * * * which said revolver she, the said Lucille Moore, * * * did discharge and shoot off, * * * then and there * * * did wound * * * Richard Shaw, * * * giving him, the said Richard Shaw, * * * one mortal wound, * * * of which said mortal wound he, the said Richard Shaw, * * * died.’ While the indictment was carelessly drawn, it is not fatally defective under the rules announced in the above-cited cases. When the erroneous part is omitted, the remainder clearly charges that defendant killed Richard Shaw on the 30th day of January, 1937, by shooting. It further appears that no motion to quash the indictment was ever presented to the trial court (People v. Pamilio, 359 Ill. 609, 194 N.E. 926), nor was objection taken to the same in the motion for a new trial or the motion in arrest of judgment.

The contention that the trial court erred in overruling the defendant's motion for continuance finds no support in the law, as applied to the facts of this case. The shooting occurred January 30, the indictment was returned February 12, defendant was arraigned February 16, and the case was called for trial on March 3. The record fails to disclose any such unusual circumstance as would make the refusal of additional time either unreasonable or prejudicial. People v. Van Norman, 364 Ill. 28, 2 N.E.2d 891. It is only where the trial court has abused its discretion in denying a reasonable time for the preparation of the defense that a court of review will interfere with the trial court's action in denying a motion for a continuance. People v. Celmars, 332 Ill. 113, 163 N.E. 421. We have uniformly held that the ruling on a motion for continuance is a matter resting in the sound judicial discretion of the trial court and will not be disturbed, on review, unless it is shown that the discretionhas been abused. People v. Storer, 329 Ill. 536, 161 N.E. 76.

Exception is taken to the action of the trial court in refusing to admit...