People v. Payton
| Decision Date | 06 December 1971 |
| Docket Number | Gen. No. 69--107 |
| Citation | 2 Ill.App.3d 693,276 N.E.2d 775 |
| Parties | PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kelly PAYTON, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Morton Zwick, Executive Director, Ill. Defender Project, Chicago, for defendant-appellant; Kenneth L. Gillis, Staff Atty., Ill. Defender Project, Chicago, of counsel.
Robert H. Rice, State's Atty., Belleville, for plaintiff-appellee; Charles Stegemeyer, Asst. State's Atty., Belleville, of counsel.
The defendant, Kelly Payton, was convicted of the crime of attempted murder in a jury trial in the Circuit Court of St. Clair County and received a sentence of not less than eight nor more than fifteen years in the penitentiary. In this appeal he contends that his indictment was fatally defective, that he was not proved guilty beyond a reasonable doubt, and that the trial court erred in not excusing a juror allegedly partial, and in allowing the prosecutor to make an unfair characterization of witnesses in his final argument. In addition he argues that his sentence was excessive. In the same trial defendant was also convicted of unlawful use of weapons, but no appeal has been taken from this conviction.
The indictment charged, 'That on the 12th day of November, 1968, in said County, Kelly Payton, committed the offense of attempt in that he, with intent to commit the offense of Murder fired a gun at the person of James H. Martin, in violation of paragraph 8--4, Chapter 38, Ill.Rev. Statutes.' Defendant argues that this indictment was fatally defective in that it failed to allege that the shooting was knowingly committed with intent to cause death or great bodily harm and failed to negate the possibility that it was done with justification. The argument is without merit. The test of a proper indictment is whether it adequately informs an accused of the nature and cause of the accusation against him so as to enable him to make preparation for his defense and to plead the judgment in bar of a subsequent prosecution. (People v. Drink, 85 Ill.App.2d 202, 229 N.E.2d 409.) Also, a gun is a deadly weapon per se and one who deliberately fires a gun at or towards another person, either with malice aforethought or with a total disregard of human life, may be convicted of assault with intent to kill. (People v. Wilson, 342 Ill. 358, 174 N.E. 398.) Here the indictment plainly alleges that defendant, using a gun, attempted the murder of a specified person on a specific date in a designated county. We hold this to be sufficient. Further allegations as to the manner of the attempt or whether it was without justification constitute matters of evidence and need not be set forth in the indictment.
Defendant's other contentions necessitate a somewhat detailed recital of the background leading up to the shooting. The complaining witness, James Martin, testified that about one month prior to the incident he and his wife had separated amicably and that she had moved to an apartment for which he had supplied most of the furniture. During this month he visited his wife on several occasions and on November 6th he first met defendant at his wife's apartment at which time they engaged in a friendly conversation. On November 12th Martin stated that he again visited his wife's apartment about 9 or 10 o'clock in the morning for the purpose of discussing a final settlement as to their property. Receiving no answer to his knock at the front door he went to the rear and looking in the window he saw his wife and defendant standing next to the bed in their pajamas. On his threat to kick in the door his wife let him in and defendant ran out the front. He accused his wife of 'shacking up' with defendant and after some discussion he demanded and took her wedding rings and wrist watch and told her he was going to Collinsville for his pick-up truck and some help so he could also remove his furniture. In Collinsville Martin contacted his son, his brother and his nephew, all of whom worked for him in his appliance store. It was suggested that the police should be contacted first in case they might need protection on their return to the apartment, so they all stopped at the police station. The police sent them to the state's attorney's office where they waited for 15 minutes until they were told that nothing could be done until something happened. They then headed for the apartment with Martin and his son in the panel truck and the other two men following in the pick-up.
As the panel truck approached the apartment Martin called his son's attention to defendant coming out the front door. Both Martin and his son testified that defendant, upon seeing them, extended his arm, sighted his gun and shot twice, both bullets slamming into the side of the truck about 18 inches from Martin who was driving. At the time they were about 100 feet from defendant driving on the opposite side of the street from the apartment. Martin accelerated his truck, got behind a bus and drove a block away. Looking back both of them could see defendant still coming towards them so they hollered to the men following in the other truck to call the police. They then pulled quickly away and went to the state's attorney's office to swear out a warrant. Martin further testified, as did all of those accompanying him, that neither he nor did anyone of them have a gun or make any threatening gesture whatsoever toward defendant.
A police officer testified that he arrested defendant about one-half block from the apartment and that defendant denied taking part in any shooting. However, in defendant's pocket the officer found one live .22 caliber shell and one casing, and five .38 caliber watcutter flat head shells, two of which were spent. He also testified that such .38 caliber shells would make similar indentations as were made in Martin's truck.
For the defense Mrs. Martin reiterated her husband's testimony as to their amicable separation, his help in moving, his visits and his friendly meeting with defendant. But, she testified defendant was not present when her husband came to her apartment on the morning of November 12th; that her husband had knocked on the front and back door and only after she had changed from her pajamas to her slacks did she decide to let him in; that when she opened the door he came bursting in with a gun in his hand, that he hit her, choked her, tore her clothing, tried to rape her, took her rings and other jewelry and told her he was going to Collinsville to get a truck to move all the furniture, and that when h...
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People v. Campbell
...of defendant's assertion that a court may not arbitrarily substitute an alternate juror over defendant's objection (People v. Payton (1971), 2 Ill.App.3d 693, 276 N.E.2d 775), it points out the judge here cannot be held to have acted arbitrarily where it was the jurors themselves who asked ......
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