People v. Shack

• Decision Date: 17 March 1947
• Docket Number: No. 29684.,29684.
• Citation: People v. Shack, 396 Ill. 285, 71 N.E.2d 633 (Ill. 1947)
• Parties: PEOPLE v. SHACK.
• Court: Illinois Supreme Court

396 Ill. 285

71 N.E.2d 633

PEOPLE

v.SHACK.

No. 29684.

Supreme Court of Illinois.

Jan. 22, 1947.

Rehearing March 17, 1947.

Error to Criminal Court, Cook County; Charles E. Byrne, Judge.

Willie B. Shack was convicted of murder, and he brings error.

Affirmed.

David James Maddox, of Chicago, for plaintiff in error.

George F. Barrett, Atty. Gen., and William J. Tuohy, State's Atty., of Chicago (Edward E. Wilson, John T. Gallagher, Richard B. Austin and Joseph A. Pope, all of Chicago, of counsel), for the People.

GUNN, Chief Justice.

Plaintiff in error, Willie B. Shack, hereafter called defendant, has sued out a writ of error to the criminal court of Cook county to reverse a conviction of murder in a trial by jury, in which his punishment was fixed at 40 years in the penitentiary.

Defendant assigns many errors, but argues only the following: (1) that the evidence is so conflicting that, together with the introduction of incompetent evidence, it renders the verdict contrary to law; (2) that the State's Attorney in his arguments to the jury made prejudicial remarks calculated to prejudice the jury; (3) that evidence connecting the defendant with a third party as constituting a motive was improperly allowed, and that referring to it by the State's Attorney constituted error; and (4) no evidence was introduced that constituted a ground from which the State's Attorney could argue that the motive of defendant was jealousy.

The homicide occurred on August 19, 1945 early in the morning, although most of the acts out of which the controversy aroce occurred during the previous evening.Defendant had an uncle living at 3347 Giles Avenue, and Charles (Zack) Gibbs had a place at 3350-52 Giles Avenue, both in the city of Chicago.On the evening of August 18, 1945, some of the persons hereafter mentioned were at the house of the uncle of defendant, and from there went to the place operated by Gibbs, which he referred to as a ‘hut.’The persons present were defendant, Gibbs, Verdell Fisher(the deceased,) Slim, (last name not disclosed,) clarence Cook, Terry (a white woman,) and others.The inference is clear that all of the parties except Terry were colored, although it is not so stated in the record.After eating they purchased and drank a considerable quantity of whisky, and then started a crap game.The game broke up over a quarrel between Gibbs and Chester Shack, a brother of the defendant, which ended in a fight outside of the premises.During the course of the fight Chester called for help, and the defendant went out, and after the use of considerable force upon Gibbs and others the fight was ended, and Gibbs left saying he was ‘going to his mama's and get a gun,’ and the other men left for purposes not disclosed.

After that, in the course of the evening, Gibbs, Slim, Terry and the defendant went to the uncle's house, and there more whisky was served, and while defendant was out of the room Gibbs, Terry and Slim left, and later Gibbs returned to his home, as he says, about three o'clock in the morning.About 12:30 a. m. the witness Miller and the deceased were sitting on the steps at 3350-52 Giles Avenue when defendant came out of an alley through the backyard of the Gibbs premises, and came up to him and to Fisher, and asked where Zack (Gibbs) and the girl were, and before anything was said Shack commenced hitting the deceased on the chest.Deceased ran across the street towards his house, and during the course of the next day he died.This witness did not see the knife, but saw blood spots the next day, where Fisher had been, and the proof shows Fisher died of a knife wound.The evidence is confused as to whether it was immediately before or after the assault upon Fisher that defendant asked his cousin where Terry had gone, and upon saying she did not know the defendant knocked her off of the railing with his fist, and also knocked down Chester Shack, his brother, for interfering.There is evidence that at this time the defendant had a knife in his hand, and that when he left the scene of the affray with another man the latter said ‘you hit the wrong man anyhow.’

Another eyewitness, who resided directly across the street, heard a commotion out-of-doors and looked out of the window and saw Fisher and another fellow sitting on the stairs at 3350 Giles Avenue, and heard the sound of a fight and heard Verdell Fisher scream, and saw him run across the street with somebody following him, and then witnessed the assault upon the cousin, and the brother of defendant.

The version given by the defendant is entirely different.He claims he was not interested in the Terry woman, and that when he came back towards the Gibbs place he saw the two men together, and as he walked down they got on each side of him, and one of them drew a knife, and in struggling with the person who had the knife, stabbed him and took the knife away from him, and that that man was Fisher.He then left the scene and was arrested later on, and denied he had been in the neighborhood.He also denied any more than a passing acquaintance with Terry, although it is rather clearly shown he had his name on the mailbox at the place where she lived, and clothes were found in this apartment, in which were found some letters and his ration card, indicating that at least he had been there.There is a suggestion there is doubt of defendant's guilt because no eyewitness saw him actually stab the deceased, but this is not of consequence, inasmuch as he admits he did do the stabbing, but under different circumstances than related by the witnesses for the State.

It appears without any question that Fisher, an innocent bystander, was stabbed to death with a knife, and that defendant was in the immediate neighborhood and ran away, and admitted to the police that he had cut a man, but did not know he had died.Other details appear in the evidence, but are not material to the questions raised in this case.

The first point urged is that the evidence was so conflicting that, together with incompetent evidence or misconduct, it requires a reversal of the jury's verdict.The rule is well settled that the verdict of a jury will not be disturbed where the evidence is merely conflicting.People v. Thompson, 321 Ill. 594, 152 N.E. 516;People v. Price, 371 Ill. 137, 20 N.E.2d 61;People v. Tamborski, 356 Ill. 11, 190 N.E. 90.But the verdict will be more closely scrutinized if incompetent evidence is allowed, People v. Rogers, 348 Ill. 322, 180 N.E. 856, 82 A.L.R. 1124; or there is misconduct upon the part of the prosecuting attorney.People v. McLaughlin, 337 Ill. 259, 169 N.E. 206; or where it rests on the testimony of the accomplice alone, People v. Gordon, 344 Ill. 422, 176 N.E. 722; or there is a lack of identification, People v. Etzel, 348 Ill. 223, 180 N.E 789; or other like circumstances.In such cases the evidence is more closely examined to ascertain whether the other errors have had an effect upon the weighing of evidence.

The brief for plaintiff in error contends the evidence referring to Terry was not only improper, but referring to it in the argument...