People v. Payne

• Decision Date: 15 February 1935
• Docket Number: No. 22669.,22669.
• Parties: PEOPLE v. PAYNE.
• Court: Illinois Supreme Court

359 Ill. 246

194 N.E. 539

PEOPLE

v.PAYNE.

No. 22669.

Supreme Court of Illinois.

Feb. 15, 1935.

Error to Circuit Court, Jefferson County; W. Joe Hill, Judge.

Fay Payne was convicted of murder, and he brings error.

Affirmed.

R. E. Smith, of Benton, for plaintiff in error.

Otto Kerner, Atty. Gen., George W. Howard, Jr., State's Atty., of Mt. Vernon, and J. J. Neiger, of Springfield, for the People.

SHAW, Justice.

Herman Harold Rich, Clarence Russell Sefried, Raymond Bailey, Virgil Summers, Fay Payne, and Lillie S. Riggs were indicted in the circuit court of Jefferson county for the murder of Rosier Green. Rich entered a plea of guilty, and was sentenced to a term of fourteen years' imprisonment in the penitentiary. The other defendants, except Lillie S. Riggs, were tried together by a jury, and a sentence of seventeen years' imprisonment in the penitentiary was imposed upon each of them. Payne sued out this writ of error.

Rosier Green and his brother, Wiley Green, resided about nine miles east of Mt. Vernon and two miles southeast of Bluford, in Jefferson county. The house is on the east side of a highway extending north and south, and consists of two small rooms of log construction joined at the southeast corner of one room and the northwest corner of the other. A screened porch extends along the south side of the north room and on the west side of the south and east room, forming a corner at that part of the house. Rosier Green and Wiley Green, and the latter's grandson, eight years of age, were the only occupants of the house on December 8, 1933. The evidence for the people is that three or four days previous to December 8, 1933, Fay Payne, the plaintiff in error, met Rich in Mt. Vernon and told him that a man residing near Bluford was supposed to have $3,000 in money upon his premises which could easily be obtained. Thereafter Rich met the plaintiff in error and requested him to go to the home of Ross Moore and wait for him. Rich then went to an apartment occupied by Sefried, and there met Sefried, Summers, and Bailey. These four men went to the home of Moore. The plaintiff in error was already there, and related to Sefried, Summers, and Bailey the substance of the statement he previously had made to Rich. He said that he could not accompany the four men to obtain the money, for he had to have an alibi, but would show them the house, and, if they obtained $3,000, he expected to receive $500. Sefried, Summers, Bailey, Rich, and the plaintiff in error on the night of December 7, 1933, about dark, went in a Ford V-8 automobile driven by Bailey, but directed by the plaintiff in error, east from Mt. Vernon to the second crossroad east of the Illinois Central Railroad, and turned and drove south for some distance. After driving up and down the road, the plaintiff in error was unable to point out the residence of the man who he thought had the money on his premises, and they returned to Mt. Vernon. The plaintiff in error told Sefried to meet him at the home of Moore the following morning, and he would have a way to take him out and show him the house which he failed to find the previous night. It was agreed that Sefried, Summers, Bailey, and Rich, but not the plaintiff in error, should meet at 5:30 o'clock the following night at an iron bridge about a mile east of Mt. Vernon. The four men, accompanied by Mrs. Bailey, met at the bridge, and the latter was taken back to Mt. Vernon. The men then drove east and south to the house which Sefried identified, reaching there about 6:30 o'clock. All of the men were armed and all of them left the automobile and went toward the house except Bailey, who drove the automobile some distance south of the house. It was agreed that, when a light signal was flashed to him by one of the other men, he would drive back north and stop near the house. Bailey received the signal, drove back, and when about opposite the house sounded the automobile horn. Wiley Green saw the automobile pass the house, and it appeared to him to stop and that the lights were turned off. When the automobile horn was sounded, Rich and Sefried were at the south part of the house, and Summers was in the rear. Rosier Green went to the porch and toward Rich and Sefried. Rich approached Green and pointed a revolver at him, and the latter stated back toward the front door and began shouting. Rich and Sefried followed him. Wiley Green about the same time went to the porch door with a revolver in his hand, and, according to his testimony, as he reached the door, he heard two shots fired. He then shot, and afterward heard several more shots fired. He also used a shotgun and fired at the automobile as it moved away. Rich testified that Wiley Green was the first to fire, and that he (Rich) then fired, and after that time he heard several other shots fired. Rosier Green was struck on the head and was shot in the right side of his body. Sefried was shot through the left ear. Wiley Green went to the home of another brother residing in the vicinity to have him notify a doctor, and he then immediately returned home. Rosier Green lived about twenty minutes after the return of Wiley, but died before the doctor arrived. Immediately after the shooting the defendants departed and by an indirect route returned to Mt. Vernon. The following morning Payne went to Sefried's apartment and met Bailey and Rich. He asked Rich how they ‘got along’ the previous night, and Rich replied, ‘Not so good; somebody got hurt.’ Payne then said that he had better leave.

The defense was an alibi. The plaintiff in error testified in his own behalf that on December 7, 1933, he did not see Rich, as the latter testified, and that he was at his home in Mt. Vernon until he left for his father's farm in Wayne county, where he went to meet his sister, who had come from St. Louis for a visit. He reached there about 12 o'clock and remained until about 5 o'clock in the afternoon, when his brother and two sisters took him back to Mt. Vernon in an automobile. They stayed in the automobileand talked until about 6 o'clock. He went to Bluford on December 8 in an automobile driven by Lillie S. Riggs and afterward went to his father's home, reaching there about 3 o'clock, and remained all night and until about 9 o'clock the following morning. At that time he went to the hard road, where he previcusly had agreed to meet Mrs. Riggs, and he returned with her to Mt. Vernon. He testified that he became acquainted with Sefried when they met in the courtroom; that he had met Summers at the time of their arrest; that he had met Bailey a few times, and had known Rich for about six months. He denied that he told any of the defendants that any one had money which might be obtained by a robbery, or that he entered into a conspiracy with the other defendants, or that he was to receive any part of the proceeds of a robbery.

Rose Payne, the mother of the plaintiff in error, Albert Payne, a brother, and Olla Payne, a sister, corroborated the testimony of the plaintiff in error that he was at the home of his father on December 7 and remained there until about 5 o'clock; that he was again at the same place the following day at about 3 o'clock and remained all night and until 9 o'clock the following morning, and was not away from the home of his father between those hours. Mrs. Terrell, another sister, offered corroborative testimony concerning the plaintiff in error's presence at the home of his father on December 7, 1933.

Each of the defendants testified in his own behalf except Sefried. Three witnesses testified in support of the alibi of Bailey with respect to his movements on December 7 and 8, and there was some testimony as to his whereabouts on December 9. Bailey admitted that Rich approached him about a week previous to the time Green was killed, but he told Rich he would have nothing to do with the proposition which Rich made. He also admitted that he had been informed through ‘underground sources' that a revolver similar to one he owned had been taken to the home of his sister in Terre Haute after Green was killed, and that he went to her home to obtain it. Two witnesses testified that Summers was at his home at 5:30 or 5:45 o'clock on December 8, 1933, had supper there, and remained at home all night. Two witnesses testified that Sefried was working at the home of Vearl C. Adams all day on December 8, 1933, and he remained all night. A third witness testified that Sefried was at the home of Adams from 5:30 o'clock in the evening and remained all night on the date mentioned. In rebuttal, a witness for the people testified that he and Bailey were in jail together in Pocahontas, Ark., and Bailey asked him. ‘Did you ever get in a stick-up or a scrape where anybody got killed?’ When the witness replied that he had not, Bailey said that he had; that on December 8 he and other boys went into the country, drove past a house and sounded their automobile horn; that a man came to the door and they pointed a gun at him and the man ran and shouted; that they shot, and another man came to the door and shot, ‘and there was a lot of shooting.’ Another witness testified that, while he was in the county jail of Franklin county, Summers, in the presence of himself and other witnesses, said. ‘We are all going to stand pat and fix an alibi and try to lay all the blame on Rich.’ This witness was corroborated by one of the persons in whose presence the statement was testified to have been made.

Several errors are urged for a reversal of the judgment. Two of them relate to the overruling of motions for a bill of particulars and for a severance. It is also contended there was error in the giving of one instruction and in the court's refusal to give another. Complaint is also made of prejudicial remarks in the argument of the prosecuting attorney. Lastly, it is urged that the testimony upon which the conviction rests is largely that of an accomplice, and that the evidence is...