People v. Terrell

• Decision Date: 21 February 1914
• Citation: 104 N.E. 264,262 Ill. 138
• Parties: PEOPLE v. TERRELL.
• Court: Illinois Supreme Court

262 Ill. 138

104 N.E. 264

PEOPLE

v.TERRELL.

Supreme Court of Illinois.

Feb. 21, 1914.

Error to Circuit Court, Montgomery County; Thomas M. Jett, Judge.

Mary J. Terrell was convicted of murder, and brings error. Affirmed.John E. Hogan, of Taylorville, and Hill & Bullington, of Hillsboro, for plaintiff in error.

P. J. Lucey, Atty. Gen., J. Earl Major, State's Atty., of Hillsboro, and George P. Ramsey, of Springfield, for the People.

DUNN, J.

The plaintiff in error, having shot and killed her husband, Fred W. Terrell, was indicted for murder, and having been convicted and sentenced to 14 years' imprisonment in the penitentiary has sued out this writ of error to review the record.

The plaintiff in error, who was 53 years old at the time of the homicide, had been married to a man named Barnstable, from whom she was divorced, and on December 24, 1907, she married Fred W. Terrell, with whom she lived until his death. They were then living at Nokomis, which had been their home most of the time since their marriage, and their family consisted, besides themselves, of her sons, Ed and Clarence Barnstable, aged, respectively, 21 and 18 years, her daughter, Lillie, and a child of the latter. Their home was situated in the southwest part of the town, on the west side of a north and south street, and the house sat back about 40 feet from the sidewalk. No fence separated the lot from the street. There was a concrete sidewalk, and a walk of the same material extended from the sidewalk to the house. About 6 o'clock in the evening of August 7, 1912, Terrell, the deceased, approached his home, walking south on the west side of the street, coming from the direction of the ice plant, where he had been at work. He carried his dinner pail in one hand. Mrs. Terrell, who had been a few minutes before sitting on the porch in front of the house, was standing on the porch when he was about 20 feet from the walk leading to the house, with a revolver in her hand, and called to him in a loud voice, repeatedly, to go back where he came from and not to come in there. Terrell continued to walk south, and Mrs. Terrell ran down the steps from the porch to the walk, fired the revolver into the air, and started down the walk. As Terrell reached the walk down which Mrs. Terrell was coming he turned around, facing the north, and she fired a second shot, which passed through the back part of his left arm near the shoulder and entered his body. He fell on his left side, dead, his feet on the sidewalk and his body partly on and partly at the side of the walk leading to the house.

It is argued that the court erred in the rejection of evidence offered by the plaintiff in error and in the giving and refusing of instructions, and that the verdict is contrary to the law and the evidence.

It is claimed that the plaintiff in error was justified in taking the life of the deceased by the apparent danger of death or great bodily injury to herself or her family, particularly her son Ed. The plaintiff in error testified that trouble between herself and her husband began soon after their marriage, occasioned by his inhuman abuse of her, and that he always cursed and called her vile names; that he threatened many times to kill her and the whole family, and was particularly violent and profane in his threats against her son Ed; that the night before his death he repeated his abuse of her and his profane threats to kill the whole family. She is corroborated as to these statements by her sons and daughter. On the morning of August 7th she got up at four o'clock, got her husband's breakfast, and called him to it about 5 o'clock, but he told her to put it in his bucket with his dinner and he would eat it at the ice plant, where he was at work. The next time she saw him, she says, was at the ice plant, between 4 and 5 o'clock in the afternoon. He had recently procured a patent, and she told him that her attorney had told her that he was getting money on it right along, and she had come to see if she could get any satisfaction out of him for the way he was doing. She told him she was almost crazy with trouble and what he said he would do when he got the money on the patent, but he cursed her and told her it was none of her business and repeated his profane threat to kill Ed. She said she was only at the ice plant once that day, and that when she returned home she sat on the porch a few minutes. When she saw her husband coming he was walking fast, almost running. She went into the house and got the revolver, which belonged to her daughter. When she warned him not to come in he looked up and said something which she did not understand but which her daughter testified was ‘God damn this place.’ She fired in the air to frighten him and had no recollection of the second shot. She testified that her husband had a revolver, which he habitually carried in his right-hand coat pocket, and that when she fired she was in danger of receiving great bodily harm at his hands or of being killed. She is corroborated by her daughter and her son Ed as to most of what occurred at the time of the shooting. She is contradicted as to the fact of her husband's almost running by disinterested witnesses who saw him and said he was walking at an ordinary gait and who noticed nothing unusual in his actions or appearance. No revolver was found on his person, but no examination of his clothing was made for five or six hours. He was not facing the plaintiff in error when he was shot. He was not going toward her and was not on the walk leading to the house, for he was shot in the back, the bullet entering at the back of the left shoulder, and his feet were still on the sidewalk after he was dead, his body extending toward the house. Whatever threats he may have made, there is no evidence that he had then any intention of carrying them out or that he was then contemplating any violence, or that there was any apparent reason for apprehension on the part of the plaintiff in error that she or any member of her family was in danger of death or of receiving great bodily harm from him.

[1][2] The plaintiff in error offered to prove by several witnesses threats made by the deceased to kill Ed Barnstable, the defendant's son, at various times in 1911 and 1912, but an objection by the people was sustained. This evidence was offered immediately after the evidence for the prosecution was closed, and no evidence had then been offered which in any way tended to show an attack, or intended attack, either upon the plaintiff in error or her son by the deceased. The objection was sustained for that reason, the judge saying that it was not then sought to show that the plaintiff in error was then undertaking to defend any attack made upon any member of her family and that the evidence at that time was not admissible; that if he concluded it was proper he would permit the witness to be recalled at a later time. The testimony was not again offered. In homicide cases, when it is sought to show that the deceased was a dangerous, vicious man, the rule is that ‘it is admissible for the defendant, after having first established that he was assailed by the deceased and in apparent danger, to prove that the deceased was a person of ferocity, brutality, vindictiveness, and excessive strength; such evidence being offered for the purpose of showing either: (1) That the defendant was acting in terror and hence incapable of that specific malice necessary to constitute murder in the first degree, or (2) that he was in such apparent extremity as to make out a case of self-defense, or (3) that the deceased's purpose in encountering the defendant was deadly.’ Wharton on Crim. Evidence, § 84. In Cannon v. People, 141 Ill. 270, at page 281, 30 N. E. 1027, at page 1029, the court, after quoting this statement of Wharton, said: ‘When evidence is submitted from which the court can see that the jury may, if they give it credence, find that the party killed was the assailant and that the defendant acted in self-defense, such evidence becomes admissible, as tending to show the circumstances by which the defendant was surrounded, and the extent of the apparent danger to his life or person, and from which he might be justified in believing that his life was in danger, or that he was in danger of suffering great bodily harm at the hands of the assailant, and illustrating to the jury the motive by which he was influenced. It appears, however, that the evidence was offered before the defendant testified, and was rejected, and that it was not again offered after his testimony. At the time it was offered there was no evidence showing that the deceased was the assailant, and the evidence was then properly excluded. If the defendant desired the evidence to go to the jury, it should have been offered after the introduction of the evidence tending to show the assault by the deceased.’ The same...