People v. Newman

• Decision Date: 17 April 1935
• Docket Number: No. 22895.,22895.
• Citation: 195 N.E. 645,360 Ill. 226
• Parties: PEOPLE v. NEWMAN.
• Court: Illinois Supreme Court

360 Ill. 226

195 N.E. 645

PEOPLE

v.NEWMAN.

No. 22895.

Supreme Court of Illinois.

April 17, 1935.

Error to Circuit Court, Christian County; F. R. Dove, Judge.

Edward Newman was convicted of manslaughter, and he brings error.

Reversed.

Leal W. Reese, D. W. Johnston, and W. S. Greer, all of Taylorville (George W. Dowell, of Du Quoin, of counsel), for plaintiff in error.

Otto Kerner, Atty. Gen., John W. Coale, State's Atty., of Taylorville, and J. J. Neiger, of Springfield (John E. Hogan, of Taylorville, of counsel), for the People.

STONE, Justice.

Plaintiff in error, on an indictment in the circuit court of Christian county for the murder of one Joe Agotis, was found guilty of manslaughter. He urges reversal of that judgment on the following grounds: (1) The court erred in giving to the jury an instruction defining manslaughter and a form of verdict based on that charge, for the reason that the accused was either guilty of murder or was innocent under his defense of self-defense; (2) the verdict is against the manifest weight of the evidence; (3) a new trial should have been granted because of newly discovered evidence; (4) misconduct of the bailiff in charge of the jury; and (5) errors in receiving and rejecting testimony.

Plaintiff in error was twenty-six years of age at the time of the trial, and lived in the city of Taylorville with his father and mother. He was a miner, though not at that time engaged in mining. The Newman home was on the north side of Prairie street, an east and west thoroughfare in the city of Taylorville. On the south side of Prairie street, slightly to the west of the Newman home, was the home of one Elliott. Directly south of the Elliott lot, and across the alley back of that lot, was the building in which the deceased lived. It was a single-room structure twenty feet east and west, with a width of about eight feet. It stood back about two feet from the alley line, and was surrounded by a picket fence. It was made of common lumber, unlined, with a door on the south side near the west end, and two windows on the south side. There were no windows in the north side nor in the west end. It is characterized in the evidence as a ‘shack.’ On the lot next west from the Elliott home is the home of Joe Schwab, and next west of that the home of one Beaman. This latter lot abutted on Elevator street, a north and south street intersecting Prairie street. On the north side of Prairie street, on the third lot west from the Newman home, lives the sister of deceased, Marcella Kinder Stopelis, with her son, Bennie Kinder. The Elliott, Schwab, and Beaman lots are 50 feet in width and 142 feet deep. On May 13, 1934, about 9 o'clock a. m., plaintiff in error, Geraldine Thompson, and Joe Schwab were digging for fish worms in the north side of the alley, just west of the east line of the Schwab lot. Joe Schwab's wife was inside the Schwab lot leaning on the fence, watching them and facing south. While they were thus engaged, Agotis came out of his shack, and, standing near his west fence, close to the southwest corner of his shack, swore at them, and pointing a revolver at them ordered them to get our of the alley or he would kill them. Mrs. Schwab, observing his attitude, warned those in the alley of his presence just before he began swearing at them. As the three looked up, Agotis fired at them. The bullet went through a picket in his north boundary fence and struck the ground a few inches in front of Geraldine Thompson, between her and plaintiff in error. The three in the alley then ran west to Elevator street, a distance of about 145 feet, thence north a distance of 142 feet to Prairie street, and east approximately 75 feet to the front of the Schwab house. Mrs. Schwab ran north in her lot to the front of the Schwab house. Mrs. Stopelis was in her garden, just across the street north, and was told of the occurrence by Mrs. Schwab. Plaintiff in error's mother came to the porch, and, on hearing what Mrs. Schwab had said, fainted and was carried into her house. According to the testimony of witnesses for the defense, plaintiff in error and Schwab then went to the rear of the Schwab house. Schwab entered his basement by an outside entryway and plaintiff in error walked toward the back of the Schwab lot to a point where he had placed a lunch basket when they started digging for worms. The Schwab garage is along the east boundary line of that lot, a short distance back of the house. Plaintiff in error testified that after picking up the basket he started toward the garage to get some fish poles which he had placed there, when he saw Agotis standing about four feet west of the southwest corner of his shack, pointing a gun at him. He testified that Agotis fired two shots at him, whereupon he took out of the lunch basket a gun which he had put there to take with them on their fishing trip and fired seven shots at Agotis, and that Agotis dropped his hands and turned and disappeared around the corner of his house, and that that was the last he saw of him, and that plaintiff in error then went to his own home.

Mrs. Stopelis testified that with her son, Bennie, she went to the shack of her brother, Agotis, and found the door locked. Shortly thereafter the sheriff, who had been called, came and forced the door. They found Agotis lying in the west end of the shack, near a cookstove, on which some meat was burning in a frying pan. The evidence showed that he had been shot three times. One bullet struck him in the shoulder, another in the chest, and one in the abdomen. He died shortly after the officer found him and before medical assistance arrived. Other physical facts show that there were five bullet holes in the Agotis shack. Two were in the north side, near the northwest corner, and three were in the west end, near that corner. They ranged from three feet to four feet and three inches from the ground. On the south side of the structure were two bullet holes, one going through a window and the other going through the board wall. One of these holes was about three feet seven inches above the foundation line, and seven feet four inches east of the west wall. The other was four feet three inches above the foundation and eight feet nine inches east of the west wall. It is conceded that these holes were made by the bullets fired into the north side of the shack. No marks of the other three bullets were found on walls of the shack. Agotis' gun was found in a hen's nest in the chicken house on his premises about ten feet east of the east end of his shack. The gun contained three empty shells and three loaded ones. The testimony is that one of the empty shells had not been fired recently,...