People v. Smith

• Citation: 391 Ill. 172,62 N.E.2d 669
• Decision Date: 19 September 1945
• Docket Number: No. 28900.,28900.
• Parties: PEOPLE v. SMITH.
• Court: Supreme Court of Illinois

391 Ill. 172

62 N.E.2d 669

PEOPLE

v.SMITH.

No. 28900.

Supreme Court of Illinois.

Sept. 19, 1945.

Error to Criminal Court, Cook County; John Prystalski, Judge.

Herbert Smith was convicted of murder, and he brings error.

Affirmed.

Aaron H. Payne, 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, Melvin S. Rembe, and Joseph A. Pope, all of Chicago, of counsel), for defendant in error.

THOMPSON, Chief Justice.

Plaintiff in error, Herbert Smith, was indicted and tried in the criminal court of Cook county for the murder of Nural Smith. He entered a plea of not guilty, waived trial by jury and, at the close of all the evidence, was found guilty of murder as charged in the indictment. He was sentenced to the penitentiary for a term of fourteen years. Motion in arrest of judgment and for a new trial was overruled and the defendant was sentenced accordingly.

Numerous errors are assigned but those argued group themselves in four questions: (1) The court erred in its ruling upon the evidence; (2) the court erred in failing to enter a finding within a reasonable time after the close of the case; (3) the evidence is not sufficient to support the finding as a matter of law; (4) the evidence does not prove the defendant guilty beyond a reasonable doubt.

The facts and circumstances as shown by the evidence are as follows: Sometime after midnight of July 23, 1944, the defendant entered the Spot Tavern, located on the northeast corner of Forty-third street and Evans avenue, in the city of Chicago. At the time he entered the tavern he was accompanied by Robert Finney, Clover Lee, Edward Johnson and a man by the name of Green. He remained in the tavern for several hours with friends, among whom were Leona Williams, her husband Charles Williams, her sister Myrtle Ledbetter and one Green. The tavern was crowded and when the defendant went to the bar to purchase a drink for a member of his party he accidentally bumped into the deceased which resulted in considerable argument, and, as the defendant stated, the deceased drew his knife. The defendant returned to his friends and related what had occurred and was told to go back to the deceased and tell him to go outside and put his knife down and fight. This the defendant did and a further argument followed. No blows were passed, however, and the defendant shortly thereafter left the tavern accompanied by Waddell Hudson and a woman by the name of Luberta Pettigrew. After leaving the tavern the three entered defendant's car, which was parked in front, drove a couple of blocks where the defendant opened the trunk of his automobile, got his gun, placed it in his shirt and returned with the same parties to the tavern which by this time had closed. He talked to some people there and was told that the deceased had boarded a streetcar going in a westerly direction on Forty-third street. He then, in company with Waddell Hudson and Luberta Pettigrew, pursued the streetcar and boarded the same at Forty-third street and Vincennes avenue, which is a distance of some seven or eight blocks from the tavern. The defendant stated to the police: ‘When we got there the trolley was off the streetcar and it was dark inside. We knocked on the door, Waddell Hudson and I, when the door opened we walked in the streetcar. We didn't have the guns in our hand at the time. I had mine under my shirt and I don't know where Waddell had his. I walked up to the deceased and said ‘I want you to get off, you owe the young lady and myself an apology.’ He then pulled a knife, then I went to get my pistol but he knocked it out of my hand onto the floor. As I went to pick it up I heard a shot. At that time the streetcar was full of people. We got off and got in my car. I gave my pistol to Luberta Pettigrew and we turned around and went back east on Forty-third street.' Several witnesses testified as to what occurred in the streetcar and there was some dispute as to who actually fired the shot that killed the deceased.

It is first contended that the court erred in its ruling upon certain rebuttal testimony given by one Marshall J. Carroll, a police officer, who was called as a rebuttal witness over the objections of the defendant. George Venitis, a witness who was present at the scene of the alleged crime, was called as a witness for the defendant and testified that he did not see the defendant, Herbert Smith, with the gun in his hand and that he did not see him; that it was a different guy who had the gun in his hand, a real heavy-set fellow with a short neck. After he had so testified in chief, he was cross-examined by the People and was interrogated as follows: Q. ‘Isn't it a fact that you told officer Marshall Carroll at the inquest that the defendant seated here (indicating defendant) is the man who did the shooting, but that you didn't want to involve yourself?’ The witness answered, ‘I didn't see the man. What inquest?’ Q. ‘You never told him that?’ A. ‘No, I never saw him. I don't know what inquest you are talking about.’ Officer Carroll was called as a rebuttal witness in behalf of the People and testified as follows: ‘My name is Marshall J. Carroll. Live at 4846 West Adams street and am a police officer of the city of Chicago assigned to the Detective Bureau. I attended the inquest in connection with the shooting and death of Nural Smith at Forty-eighth and Wabash about the 9th of August in the court room on the second floor.’ This question was then asked of the police officer: ‘Did George Venitis at that time say that this defendant was the person who did the shooting but he did not want to involve himself in the matter?’ Objection was made which was overruled and exception noted and the witness answered, ‘As near as I can remember when George Venitis finished his testimony at the inquest he came back and sat down and his words were that ‘You have got the right man. He did the shooting.‘‘

Counsel for the defendant contends that this testimony was inadmissible; that it was not made in the presence of the defendant; that the witness Venitis had testified under oath at the inquest and at the trial where the said witness was confronted with the defendant and anything said by the said Venitis, or anything alleged to have been said by him, outside of the presence of the defendant and not under oath was highly incompetent and should have been stricken upon motion of the defendant. He cites the case of People v. Scattura, 238 Ill. 313, 87 N.E. 332, contending that when, in answer to a proper question, a witness gives testimony which is incompetent, it is the duty of the court, on the motion of the party against whom the testimony is given, to exclude it. There can be no doubt that it is the duty of the court to exclude such testimony when it is incompetent, however, we do not think that is the situation here. It is always competent to show that a witness, even though he be the defendant, has made a statement at another time inconsistent with his testimony on the witness stand. People v. Romano, 337 Ill. 300, 169 N.E. 182;People v. Popovich, 295 Ill. 491, 129 N.E. 161. We think the statement made here by the witness at another time was one concerning a material matter inconsistent with his testimony on the witness stand and, having been asked if he had made such statements, which he denied, it was proper to show, in the way of rebuttal, that such statements inconsistent with his testimony had been made. The testimony of the rebuttingwitness was proper and the court did not err in overruling the objection.

Defendant further contends the court erred in failing to enter a finding in this cause within a reasonable time after all the testimony had been taken and the case closed by both the prosecution and the defense. Defendant cites no authority in support of this proposition and the record discloses the postponement was for the purpose of permitting the judge to consider the evidence before his verdict; that from his summation it appears careful consideration was given, which an analysis reveals was rather favorable to the defendant in that respect and did not deprive him of any substantial rights.

It is next contended by the defendant that the evidence is not sufficient to support the finding as a matter of law and that the evidence does not prove the defendant guilty beyond a reasonable doubt. These points will be considered together. It is urged by the defendant that the trial judge in his opinion stated that Joseph Brown, the only witness who testified the defendant shot the deceased, was in error as to a number of things with reference to the streets and distance that the car traveled and, in some respect, the direction in which the car was traveling; and, further,...