People v. Smith

• Decision Date: 17 September 1952
• Docket Number: No. 32309,32309
• Citation: 108 N.E.2d 596,413 Ill. 218
• Parties: PEOPLE v. SMITH.
• Court: Illinois Supreme Court

Page 596

108 N.E.2d 596

413 Ill. 218

PEOPLE v. SMITH.

No. 32309.

Supreme Court of Illinois.

Sept. 17, 1952.

As Modified Nov. 20, 1952.

Frank J. Ferlic, of Chicago, for plaintiff in error.

Ivan A. Elliott, Atty. Gen., and John S. Boyle, State's Atty., of Chicago (John T. Gallagher, Rudolph L. Janega, Arthur F. Manning, William J. McGah, Jr., John Cogan, and George Cotsirilos, all of Chicago, of counsel), for the People.

PER CURIAM.

Earl Sanders Smith, plaintiff in error, hereafter referred to as defendant, was indicted by the grand jury of Cook County, along with Edward G. Smith and Zeno Bickman. The indictment charged them with the murder of one John Sondaj. Zeno Bickman was granted a severance, and Edward G. Smith entered a plea of guilty. Zeno Bickman was tried before the court on waiver of a jury, and was found not guilty. Edward G. Smith entered a plea of guilty, and after trial was adjudged guilty and sentenced to the penitentiary for fourteen years at hard labor. On trial before a jury, presided over by the same judge as in the two instances above, Earl Sanders Smith was found guilty of murder in manner and form as charged in the indictment, the verdict fixing his punishment at death. His motions for new trial and in arrest of judgment were overruled and he was sentenced to death. He now prosecutes this writ of error.

On April 28, 1950, John Sondaj operated a tavern at 2756 South Sacramento Avenue, in the city of Chicago. He resided with his wife, Mary, in living quarters at the rear of the tavern. On that date, about eight o'clock in the evening, defendant and Edward G. Smith entered the tavern and seated themselves at the bar.

Edward G. Smith, testifying for the People, stated that he, Zeno Bickman, and defendant had previously planned the robbery of this tavern, and this day agreed to execute their plan. He and defendant each ordered a drink and then produced their guns and announced their intentions. Mrs. Sondaj came out of the living quarters and he ordered her to keep quiet. As he started for the door, he heard a shot and at that moment deceased grabbed his arm, causing his gun to fire also. The deceased and the defendant were behind him at the time. He said defendant later asked him if he thought the man would die, admitted that he shot deceased, and still later informed him that the death had occurred.

Mary Sondaj, wife of the deceased, testified she heard her husband shout, 'It is a holdup,' and she therefore went into the tavern from her living quarters. She said Earl Smith told her to get back in the kitchen or he would kill her. She did so, and then ran out into the street calling for help. She heard four or five shots and returned to find her husband shot and bleeding. He died ten days later.

Officer Tony Javurek testified that he and another officer arrested defendant and another person in a 1949 Buick automobile six months later. Under the front seat they found three automatic pistols and one .38 snub-nose revolver. In the trunk he found two sawed-off shot guns. All of these weapons were allowed in evidence, though only one pistol was identified as having been at the scene of the holdup. A ballistics expert testified that it was the gun that fired two cartridge cases found on the floor of the tavern by police officers.

In his own defense, defendant denied he shot and killed John Sondaj. He said that Edward Smith, Zeno Bickman, and himself had been riding around and drinking at various taverns, during which time Edward and Zeno consumed a fifth of whiskey belonging to him, but that he drank no whiskey. He and Edward Smith entered the tavern at 2758 South Sacramento with no prearranged plan of any kind. After ordering a drink, Edward Smith and the bartender engaged in an argument, whereupon Edward drew a gun and shot him. He related that he ran out of the tavern and then heard more shots fired. Edward Smith then came out of the tavern and said he had shot the bartender. Edward Smith left the gun in his car, and he kept it because Edward owed him some money. He claimed he had previously sold the gun to Edward.

Defendant contends that the admission into evidence of two sawed-off shotguns and some ammunition found in the trunk of the automobile which defendant was driving at the time of his arrest constitutes reversible error. No attempt was made by the People to connect these weapons with the crime committed. On the contrary, the wife of the deceased testified that a nine millimeter automatic, People's exhibit 2, looked like the gun she saw in the defendant's hand. This weapon, along with other revolvers, was found under the front seat of the automobile. Edward G. Smith said that the defendant had a pistol and that People's exhibit 2 resembled the gun defendant carried that night. All the ballistic testimony pertained to revolver pellets and identified People's exhibit 2 as the weapon which fired the fatal shot.

We have held that weapons found in a defendant's possession or control at the time of his arrest upon a murder charge may be the subject of testimony pertaining to the details of the arrest, People v. Durkin, 330 Ill. 394, 161 N.E. 739, or may be admissible to show that the accused possessed a weapon suitable for the commission of the crime charged against him, even though no claim is made that the accused actually used that weapon in committing the particular crime. People v. Dale, 355 Ill. 330, 189 N.E. 269; People v. Lenhardt, 340 Ill. 538, 173 N.E. 155. In the cases which have upheld the introduction of such evidence, the weapons were either immediately on the person of the accused at the time of the arrest, People v. Lenhardt, 340 Ill. 538, 173 N.E. 155; People v. Durkin, 330 Ill. 394, 161 N.E. 739, or in his dwelling, People v. Dale, 355 Ill. 330, 189 N.E. 269; People v. Sullivan, 345 Ill. 87, 177 N.E. 733. In People v. Geary, 297 Ill. 608, 131 N.E. 97, the evidence was held admissible to counter a defense of insanity, but here, too, the circumstances indicated that the weapons were found in rooms occupied by defendants and under their control. In People v. Doody, 343 Ill. 194, 175 N.E. 436, where the gun was found in an apartment in which the defendant rented a room, the evidence was held inadmissible.

We have found no case upholding the admission into evidence of weapons not proved to be in the possession or under the control of the defendant. Here, when the defendant was arrested some six months after the murder of John Sondaj, he was driving a car which he did not...