People v. Weisberg

• Decision Date: 19 March 1947
• Docket Number: No. 29837.,29837.
• Citation: 396 Ill. 412,71 N.E.2d 671
• Parties: PEOPLE v. WEISBERG.
• Court: Illinois Supreme Court

396 Ill. 412

71 N.E.2d 671

PEOPLE

v.WEISBERG.

No. 29837.

Supreme Court of Illinois.

Jan. 22, 1947.

Rehearing Denied March 19, 1947.

Error to Criminal Court, Cook County; Leonard C. Reid, Judge.

Julius Weisberg was convicted of murder, and he brings error.

Affirmed.

Wm. Scott Stewart, 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, Joseph A. Pope, Edmund H. Grant and John M. Long, all of Chicago, of counsel), for the People.

GUNN, Chief Justice.

Plaintiff in error, Julius Weisberg, otherwise known as Dolly, was indicted in the criminal court of Cook county for the murder of Joseph McKnight, which occurred on October 23, 1945. Upon trial he was found guilty of murder by a jury and sentenced to death, and motions for a new trial and in arrest of judgment were made and overruled, and judgment and sentence of death entered on the verdict.

The plaintiff in error, hereafter referred to as defendant, contends such error was committed during the trial of the case as to require reversal. The substantial facts disclosed that defendant and the deceased were slightly acquainted. On the evening of October 23, 1945, they met at the bar in the Regent Room located at One North La Salle Street, in the city of Chicago. The bar runs north and south, and is separated from the dining room to the east by ribbed glass. At the south end of the bar it curves around to the wall, and at that point there is an opening underneath to go behind the bar. The top part of the bar raises for this purpose. At the extreme nothe end of the bar there is also a place where the top part of the bar may be raised to get behind. The entrance to the bar is off of Madison street at the south end of the room, through a revolving door. The bar is about 50 feet long, and there are stools along the entire length of the bar.

About 11 o'clock in the evening the deceased and Weisberg met near the gate or opening at the north end of the bar. Previous to that time McKnight had been at the south end of the bar talking with the manager concerning their going out for dinner. McKnight was a large man, weighing in the neighborhood of two hundred pounds, and the defendant about one hundred fifty-five or one hundred sixty pounds. They were both somewhat intoxicated when they got together towards the north end of the bar, and they commenced to argue about the respective abilities of their nationalities, and the ability to make money. According to Weisberg he asked McKnight to have a drink, which the latter refused. He then asked him what his business was, and McKnight replied he was handling Pontiacs in Evanston. Weisberg remarked that he would like to buy a car, and McKnight said ‘Maybe we can do some business,’ upon which he claims McKnight said it would cost ‘three hundred dollars above the market,’ and upon which Weisberg said he replied ‘I thought we Jews were the only ones who knew how to make money that way. I didn't think the Irish would make it that way.’ Weisberg says McKnight became abusive. The bartender says that MeKnight said ‘I don't want no part of you God damned Sheenies,’ and that he admonished him to quit using such language and to break it up and get out. The bartender then saw no more, as he walked away to attend to business.

Almost immediately after this, shots were heard and most of the people ran out of the tavern. There were three sailors in the tavern, one of them a chief machinist in the United States Navy, and two others, who were stationed upon another ship. They had met that night, and had to take rooms in a hotel together to get accomodations. They went to the Regent Room for dinner, and from there to the south end of the bar in the tavern. They were sitting down when the shooting occurred, the shots coming from the north end of the bar. The chief machinist testified he stood up and saw who was shooting and identified the defendant. He was shooting downward. ‘I saw another fellow. I saw one was lying on the floor behind the bar. He was crawling up the bar. The man I saw crawling was at the north end of the bar. The gun I saw was pointed toward the bar in the direction the man was laying or crawling. I thought I heard four shots in all.’ According to this witness, after the shooting started everybody left the room, and his companions left their coats and hats, ‘and after the shooting was over, we went back to get the hats. As I started to go into the place I saw Weisberg. I saw him put a gun away. He put the gun in his waist. Inside of the left side of his coat in around the breast. I could tell what kind of a gun it was from where I was standing. I would say it was a .38 revolver.’

The testimony of one of his companions was to the same effect up to the time he heard the shots. He says he heard four shots and a scream and he got out of the place, but did not see who was shooting. He came back for his hat, and when he came back there was a man down at the other end of the room putting a gun away. He had the gun in his right hand and put it under his left arm, and somebody helped him with his coat. He identified the mar with the gun as Weisberg. He heard man groaning and went behind the bar to see if he could help him. He had had some experience in first aid. He was so employed when a policeman came in. ‘I heard some conversation between the mar putting on the coat and Weisberg. I heard the man who put the gun away say ‘I shot the son-of-a-bitch.“ To substantially the same effect was the testimony of the third sailor, except he does not mention the last remark.

The bartender, who told the deceased, McKnight, and the defendant to quit quarreling and get out, says that after he had talked with them he turned around to take care of some business, and heard two shots, and that he ducked down behind the bar. He also testified that a half minute or a minute before the shots were fired he had seen McKnight give Weisberg a general frisk, that is, he ran his hands over the clothes of Weisberg from the front and sides and hips. Other than this, on the part of the prosecution, there was no evidence of any assault upon the defendant by the deceased.

The evidence of the coroner's physician disclosed the deceased had been hit three times by .38 bullets, one of them entering the back about three inches below the border of the left shoulder about four inches to the left of the spine, and emerging about two inches to the left of the location of the entrance wound; another had entered the right leg from the outside and emerged on the inner part of the leg; the third bullet entered the right public area near the junction of the fold of the skin and the abdomen and perforated the intestines at three different points. The bullet traveled upward toward the liver, and there was a through-and-through perforation of the spleen and perforated diaphragm on the left side. The bullet entered the pleural cavity, perforated the lung, and passed out between the ninth and tenth ribs. No bullets were found in the body. Upon examination, two bullet holes were found in the garbage container near the north door of the bar. There was another hole in the door about eight inches below its top level.

The only witness on behalf of the defense was Weisberg. His story does not materially differ as to what occurred up to the time of the shooting. After the conversation between them above narrated he says the deceased sort of put his hands over him and felt his body and hips. ‘I looked at this man and saw a pistol facing me, and with that he took me and felt me and with that I sort of caught his arm and I said, ‘Please don't Joe.’ I grabbed the gun, and we tussled there and I heard reports. McKnight had the pistol right close to my stomach. I grabbed his hand. Before that McKnight said, ‘I am going to kill you.’ Then the two reports came, and we were wrestling, I probably tripped him and there were more reports, and as he was falling there were two reports. I had the revolver in my hand. Shots were fired by me as he was falling. After the shots had been fired I remained there at the bar. I stayed there for a few minutes. I walked in the dining room. I put the gun in my pocket. I opened the door and walked out through the La Salle street entrance, and I threw the gun in the alley. I caught a cab. As I got out of the cab and walked through the door to the St. Clair Hotel, I was arrested.'

Weisberg denied he had a gun, and that he had any intention of shooting McKnight; and denied he had made the remark testified to by the sailor. Two of the witnesses for the State testified he put the gun in a holster, or inside of something under his left arm. Defendant on the other hand testified he had no holster, and that the gun was a short-barreled one which he put in his vest pocket. The two sailors accompanying the chief machinist were taken to the police station, and told the officers they could not identify the defendant, and on trial gave as their excuse that they were on leave to visit their families and did not want to be detained. The evidence shows also their expenses were paid to come to the trial from their respective stations.

The plaintiff in error, although assigning twenty-five or more errors, argues only the following: (1) The offense could not have been greater than manslaughter; (2) the prosecutor made improper arguments; (3) there was other improper conduct upon the part of the prosecutor; (4) the list of witnesses was not given the defendant in ample time; (5) the court gave erroneous instructions upon the part of the People and refused proper instructions upon the part of the defendant.

We will consider first the failure of the People to have endorsed upon the indictment the names of all of the witnesses, or to give to the defendant a list of all of the witnesses in writing before the time of the trial. The defendant was not furnished with...