People v. Weber, 30676.

• Decision Date: 12 January 1949
• Docket Number: No. 30676.,30676.
• Citation: 83 N.E.2d 297,401 Ill. 584
• Parties: PEOPLE v. WEBER.
• Court: Illinois Supreme Court

401 Ill. 584

83 N.E.2d 297

PEOPLE

v.WEBER.

No. 30676.

Supreme Court of Illinois.

Nov. 9, 1948.

Rehearing Denied Jan. 12, 1949.

Error to Circuit Court, Peoria County; Henry J. Ingram, Judge.

Herman Frederick Weber was convicted of murder, and he brings error.

Affirmed.Fred V. Stiers and John M. Daugherty, both of Peoria, for plaintiff in error.

George F. Barrett, Atty. Gen., and Roy P. Hull, State's Atty., of Peoria (C. E. McNemar, of Peoria, of counsel), for the People.

PER CURIAM.

The defendant, Herman Frederick Weber, was indicted in the circuit court of Peoria County for the murder of Flavel Dean Fueger. He pleaded not guilty. A jury found him guilty and fixed his punishment at death. Motions for a new trial and in arrest of judgment were made and overruled. A justice of this court, in vacation, granted defendant's petition for a writ of error and made the writ of error a supersedeas. The record is now before us for review.

The testimony adduced at the trial is largely undisputed. The only important controversy relates to whether Weber, himself, shot and killed Fueger or, instead, was a reluctant accomplice to the murder of Fueger by a man named John Crowley, whose very existence is questioned. Fueger was twenty years of age, a resident of, and a student at Bradley University in, Peoria. He was last seen alive by a person other than defendant shortly before eight o'clock on the evening of December 3, 1947, as he drove from the university campus toward the center of the city in a brand new 1947 Pontiac sedanette automobile which he had purchased eight days earlier. Fueger had an appointment to meet a young woman at 8:45 P.M. at the side entrance of the Pere Marquette Hotel, where she was attending a party. He was killed, the undisputed evidence shows, about 8:30 P.M. at a lonely spot on a highway about five miles southwest of Peoria. Death resulted from three bullet wounds, the bullets having been fired from a twenty-five caliber automatic pistol, bearing the trade name ‘Terrible,’ and serial number 2096. The body, remarkably well preserved, was not found until December 15, 1947, when it was discovered submerged in the shallow water of a drainage ditch near a bridge at Dickson Mounds, about forty miles southwest of Peoria, in Fulton County.

The owner of the gun, Delores Stone, identified defendant as the man who, armed with a knife, had stolen the gun from the glove compartment of her automobile on the afternoon of December 2, 1947. She testified that defendant forced his way into the car as she was unparking in the downtown area of Peoria, ordered her to drive to the airport where he exchanged seats with her, then drove back to the city and, after ascertaining she had no money, took the pistol but did not take the car. Defendant admitted he obtained the gun from the witness on December 2.

At the time of the murder, defendant was twenty-two years of age, married, unemployed,and resided at the home of his wife's parents in Peoria. His mother and stepfather operated a tavern on the outskirts of the city. In July, 1947, defendant was convicted of larceny of a motor vehicle in the circuit court of Macon County upon a plea of guilty and was admitted to probation. While on probation, he stole a 1946 Chrysler automobile and, subsequently, abandoned it in Iowa. Later, having gone to Decatur to report to a probation officer, he and Fred Wright, a friend who had accompanied him on the trip, stole a grey 1947 Buick convertible automobile in that city and drove it to Peoria.

On December 3, 1947, defendant left his home about seven o'clock in the evening, driving the 1947 Buick convertible so recently stolen. His activities during the next few hours are embodied in five separate written confessions. About nine-thirty in the evening, defendant returned home driving Fueger's 1947 Pontiac sedanette and immediately took his wife for a long drive in the new car. During the next six days, defendant drove Fueger's car openly in and around Peoria. On December 9, the police discovered the car parked in a public street and removed it to a garage for identification. About three o'clock in the afternoon of the same day, defendant found the car was missing and hurried home at once to his wife who told him she had heard a radio announcement that the police had recovered Fueger's car and were testing it for fingerprints. Defendant then sought out his friend, Fred Wright, and told him the police were in possession of the Pontiac. Both Wright and defendant agreed that the latter should leave Peoria and Wright urged him not to delay. Wright loaned defendant a few dollars, borrowed a small sum for him from a mutual friend and drove him to his house to pick up some clothes. Defendant's wife joined him and they then returned to Wright's house where they all had dinner. Wright, a witness for the prosecution, testified that defendant told him privately he had nothing to do with Fueger's disappearance but that the body, if found, would be discovered at Dickson Mounds. Weber denied that he ever told Wright the body would be found at Dickson Mounds. After dinner, he left in the 1947 Buick convertible, which he and Wright had picked up the previous day from the side street where defendant had parked it on December 3. Defendant told Wright he was going to Conroe, Texas, and that he was first going to stop at his mother's tavern to borrow some money.

Defendant borrowed eighty dollars from his mother and proceeded directly to Texas. He was apprehended in Houston, Texas, about forty miles from the town of Conroe, on December 12, by R. B. Miller, a special agent of the Federal Bureau of Investigation. Miller called another special agent, Leo L. Robertson, to the scene of the arrest and, together, they searched defendant and his automobile. A ‘Terrible’ pistol, serial number 2096, was found in the glove compartment of the car and defendant freely admitted that the extra set of car keys in his possession fitted a Pontiac car belonging to a boy named Fueger. Defendant spent the night of December 12 in the city jail and the following morning he was taken before the United States commissioner in Houston. On the same day, December 13, he wrote out in longhand the first of his several confessions.

City police detective, Fred W. Montgomery, who had found Fueger's car in Peoria, and William J. Lytell, chief deputy sheriff of Peoria County, were assigned to bring defendant back to Peoria. Defendant was delivered into their custody on December 18 and, during an overnight stop at Murphysboro, Illinois, while en route to Peoria, defendant made a second confession, again in his own handwriting. On arriving in Peoria, defendant showed his guards the exact spot where the murder had been committed. Defendant then made three more confessions. On the night of December 20, following a conference with a priest, he executed a third handwritten confession. On December 22, he gave a statement to an investigator for the State Bureau of Criminal Identification and, the following morning, he executed his fifth, and last, confession.

The confessions varied in certain material respects and only the confession of December 23, identified as People's exhibit No. 6, was offered in evidence by the prosecution in its case in chief. Defendant objected to the introduction of the exhibit on the ground that it had been obtained by duress and that it was not a fair and impartial confession. State's Attorney Roy P. Hull, the interrogator, Elsa Parson, the stenographer, and police detective Montgomery, the witness, testified, out of the presence of the jury, that defendant was advised he did not have to make a statement and that it could be used against him; that he was not abused or mistreated; that he was not promised immunity or reward, and that his answers to the questions and his signature on the confession were both voluntary. Defendant testified that, when asked, he agreed to make the statement of December 23, that he made all the answers contained in the confession, and signed it voluntarily. He added, however, that he was willing to make the confession only because he desired to see his wife and mother, but admitted he did not recall anything being said about his wife and mother on December 23. Weber added he was in fair health, but in a broken-down condition, had in mind that he would probably ‘get off’ with a life sentence, was afraid his wife would be arrested if he did not confess and, further, that a man named John Crowley had threatened his wife's life if he were to disclose the identity of the true murderer, namely, Crowley.

Defendant also objected to the confession on the ground that his prior confessions were involuntary. Attacking particularly his statement made in Texas on December 13, defendant related that Miller and Robertson told him his wife had been arrested as an accomplice and was locked up in jail with a number of prostitutes; that he had a yellow streak a mile wide because he would not admit his guilt and tell Fueger's parents where he had hidden the body; that his wife would be released and cleared of all charges if he made a statement, and that he would receive only a life sentence upon a plea of guilty. Miller and Robertson denied the statements attributed to them by defendant, replying that they merely relayed to defendant information that his wife had been arrested.

The confession of December 23 was thereupon admitted in evidence and the jury was recalled. In response to interrogatories propounded, defendant had stated, in substance, that he left his house about seven o'clock in the evening on December 3 and drove to the ‘loop’ district of Peoria; that, after parking his car, he walked to the corner of Franklin and Jefferson streets and waited for the first 1947 model Buick or Pontiac to come along; that he wanted one of either of these particular makes of automobile so he could sell it to John Crowley, who supposedly lived at 101...