People v. Rischo

• Court: Illinois Supreme Court
• Writing for the Court: CRAIG
• Citation: People v. Rischo , 262 Ill. 596, 105 N.E. 8 (Ill. 1914)
• Decision Date: 23 April 1914
• Docket Number: No. 9301.,9301.
• Parties: PEOPLE v. RISCHO.

262 Ill. 596

105 N.E. 8

PEOPLE

v.RISCHO.

No. 9301.

Supreme Court of Illinois.

April 23, 1914.

Error to Circuit Court, Williamson County; W. W. Clemens, Judge.

John Rischo was convicted of murder, and brings error. Reversed and remanded.J. E. Carr, of Johnston City, and Sawyer & Otey, for plaintiff in error.

P. J. Lucey, Atty. Gen., D. T. Hartwell, State's Atty., of Marion, and A. B. Garrett, of East St. Louis, for the People.

CRAIG, J.

John Rischo, the plaintiff in error, was indicted at the September term, 1913, of the Williamson county circuit court for the murder of Tony Povilionis. He was tried at the same term of court, found guilty of murder, and his punishment fixed by the jury at 14 years in the penitentiary. Sentence was passed upon him by the court in accordance with the verdict. To secure a review of the matters contained therein, plaintiff in error brings the record here, and asks that the judgment pronounced against him by the court below be reversed, for the reasons that the evidence is not sufficient to support the verdict, and the court improperly instructed the jury on behalf of the people, and refused certain instructions offered by defendant.

Plaintiff in error, a miner by occupation, is a native of Austria, and has been in the United States some 7 or 8 years. He had worked at a mine in Williamson county about a year, and then moved to Johnston City, where he lived about 3 months and then moved out to the New Virginia mine, about two miles from Johnston City, where he was living when arrested and charged with murder. While living at Johnston City he had a room in what was known as the Barlow building, living there by himself and doing his own cooking. Other men also lived in this building, among them the deceased, Tony Povilionis. The deceased was a Lithuanian. It does not appear from the evidence that plaintiff in error and deceased were intimate with each other, as they were of different nationalities and spoke different languages, nor does the evidence show that there was anything to cause any ill feeling or enmity between plaintiff in error and deceased. On the night of July 30, 1913, Povilionis was shot twice by some person, and a few days later died of the wounds. Jack Overby, the night policeman of Johnston City, was at the depot when he heard the shots, about 1:30 o'clock in the morning. He saw two men running down the street, who informed him a man was shot, and that they were running for a doctor. Overby called Dr. Gore, and then went with the two men who had given him the information to the Barlow building. Povilionis was lying on a quit spread on a platform or porch, which was about five feet above the ground, on the north side of the building. There were steps leading from this platform to the ground, and also a stairway leading up from this platform into the building. Povilionis stated to the officer, and also to the doctor, that he was sleeping on the platform when he was awakened by some one feeling in his pocket. He grappled with the intruder, and caught him by the hair; that he did not recognize his assailant, but he was a large man. The man shot him twice—once in the abdomen, and once in the groin. The bullets were from a 38 caliber weapon. Povilionis' hat and shoes were off. The officer found a hat and pair of shoes on the top step of the porch leading up from the ground. Povilionis stated they were not his hat and shoes. The officer took the hat found on the steps near the wounded man to the city hall, and left the shoes at the building. Povilionis was carried upstairs to his room by the doctor and others, and the doctor informed him that his wounds were mortal. He was taken to the hospital at Mt. Vernon, and died two days later.

The Barlow building, at the north end of which the shooting occurred, is situated at the northeast corner of a street intersection, and faces to the south. R. G. Fleming and his wife lived in a house on the west side of the street that runs north and south past the Barlow building and about halfway between the corner and the next street north. They were aroused from their sleep by the shots, and came out on a balcony and saw a man run north along the street in front of their house, bareheaded and apparently without any shoes on his feet, as he made no noise. Fleming was not able to identify the defendant as the man he saw running past the house. Mrs. Fleming was not able to see well without glasses and did not have any on, and made no attempt to identify the defendant as the man she saw running.

Fleming's evidence on this point was as follows: ‘Q. Tell the jury what your best judgment is whether or not the man you saw pass your house was John Rischo. (Objected to as leading; sustained.) Q. In your best judgment, who was it? A. My judgment was—well, I don't know who it was that passed. Q. Well, what is your best judgment now about who it was you saw pass? A. My judgment is I saw no one that resembled that man more than that one. Q. Then what is your best judgment as to who it was? A. That is all the judgment I have. I have seen nobody else that resembled the man any more than him. Q. What is your best judgment as to whether or not it was John Rischo? (Objected to as being repetition.) The Court: He may state who it was, in his judgment. Q. What is your best judgment as to whether that man was or was not John Rischo, this defendant here? A. Whether that man was this one or not, in my best judgment? Q. Yes, sir. A. Well, my best judgment is that it is him.’

On cross-examination, Fleming testified as follows: ‘Q. Are you willing to tell the jury that that is the man? A. That is my judgment. Q. I am not asking you that; will you say that is the man? A. I couldn't say, only that is my judgment from what I saw. That judgment was formed from the glimpse I had of him as he ran by my house. He was running pretty fast. I could see him good after he passed from under the trees. The south light is away off. I get my light from the north light. I never said I recognized the man as John Rischo. When he was arrested, I went down to the jail and he was pointed out to me. I recognized him as resembling the one I saw. If he had not been pointed out to me, I probably would not have recognized him as the man I saw running past my house.’

About four days after the shooting, the plaintiff in error came into town wearing a hat similar in shape to the one found near the deceased, and was taken in charge by George Boyer, the chief of police, and taken to the Barlow building and afterwards to the calaboose and questioned. The officer got the hat and shoes, and insisted to the defendant that they were his hat and shoes. Defendant said they were not. Boyer tried the hat on the defendant. It seemed to fit, although it was size No. 7 1/8 and defendant wore a No. 7. The officer informed him that he was suspected of having killed Povilionis. Defendant said he did not kill him, and, when questioned as to his whereabouts, stated that he was not in town that night. The officer states that later defendant admitted he was in town. He testified on the trial that the defendant, when shown the pair of shoes, said they were about size 8, ‘that is the size I wear.’ The officer did not know their size. The officer also stated that he then told defendant that a man saw him running away from the place of the shooting that night, and defendant stated he did not see anybody. The defendant denied this on the trial. His version of the conversation was that Boyer informed him that a man had seen him running away from the scene of the crime, and he asked the officer to go and get the man. While the defendant could speak and understand the English language, it appears that he did so imperfectly, and what he actually said would be very apt to have a different meaning from what he attempted to convey. He testified as a witness on his own behalf that he informed the officer fully as to his movements, stating that he was in Johnston City on the 29th and again on the 31st days of July, but that he was not there on the 30th, and fixes the dates when he was in town by the pay day at the mine. He received his check on the 30th, but did not get through his work in time to come to town, and it was threatening rain. He did come to town and cash his check on the 31st at the grocery store and paid bills that he owed at the grocery store and at a meat market, and this is corroborated by the proprietor of the grocery store, the butcher with whom he did his trading, and by his acquaintances at the mine. At the time of his arrest, a few days after the crime, he came to town with a suit case, and was on his way to a laundry with his washing.

It will appear from the foregoing statement that the only question involved in the evidence was the identity of the defendant as the murderer. No one saw the shooting, and no one identified the defendant as being in the vicinity at the time the hat and shoes were found near the place of the murder. The police officers testified that the deceased always wore a dark, stiff hat or a cap, but one witness testified that he saw the deceased the afternoon of the night he was killed wearing a hat very similar to the hat found with the shoes on the porch, only it was turned up instead of being turned down in the manner the defendant usually wore his hat. There was no corroborative evidence of the ante mortem statement of the deceased that the hat and shoes were not his. The hat was not identified as the hat of the defendant, and the shoes were not identified as belonging to him. At the time of the trial, the defendant was wearing the hat he wore when arrested, which was similar in shape and color to the hat which was found at the scene of the murder, and which was identified...