People v. Winchester

• Citation: 185 N.E. 580,352 Ill. 237
• Decision Date: 22 April 1933
• Docket Number: No. 21762.,21762.
• Parties: PEOPLE v. WINCHESTER.
• Court: Supreme Court of Illinois

352 Ill. 237

185 N.E. 580

PEOPLE

v.WINCHESTER.

No. 21762.

Supreme Court of Illinois.

April 22, 1933.

Error to Circuit Court, St. Clair County; Henry G. Miller, Judge.

Charles Winchester was convicted of murder, and he brings error.

Reversed and remanded.Ernest R. McHale, of East St. Louis, for plaintiff in error.

Otto Kerner, Atty. Gen., L. P. Zerweck, State's Atty., of Belleville, and J. J. Neiger, of Springfield (Curt C. Lindauer and John T. Thomas, both of Belleville, of counsel), for the People.

DUNCAN, Justice.

Plaintiff in error, Charles Winchester (herein called defendant), was indicted, tried, and convicted in the circuit court of St. Clair county for the murder of Emil Kirsch. By the verdict of the jury his punishment was fixed at death. His motion for a new trial was overruled, and he has sued out of this court a writ of error for a review of the record.

As shown by the witnesses W. W. Boyne, the coroner, who was also by profession a physician, and Henry Daut, drug clerk, the evidence presented for the people is substantially as follows: The deceased was a barber, who worked in a barber shop located a few doors from the drug store. A few minutes before 8 o'clock on the morning of June 6, 1932, he went into the drug store and near the soda fountain in the front part of the store was engaged in conversation with the drug clerk when a man entered the drug store and asked for a Coca-Cola. While the clerk was preparing the drink, this man flourished an automatic pistol, and said, ‘Get to the back, both of you.’ Daut stooped down behind the counter or showcase and started toward the back of the store. Before he got back of the prescription case three shots were fired, and a fourth shot was fired after he got there. He got a pistol and came back to the front part of the store. The deceased was lying on the floor. The man who had ordered the drink and who did the shooting was leaving the store. He and another man that the evidence tended to show was Melvin Watson, who was jointly indicted but not tried with the defendant, ran north on Fifteenth street and turned left into an alley known as Division avenue. Daut fired three shots at them as they ran along the sidewalk on Fifteenth street, and he then went back into the drug store. The deceased was killed by a bullet fired from an automatic pistol that entered the back of his neck, severed the jugular vein, and came out over the right nipple. There is no doubt, under the evidence, that the man who ordered the Coca-Cola shot and killed the deceased. At the trial Daut identified the defendant as being that man. He also examined an automatic pistol put in evidence by the people, and stated that he had a fairly good look at it when the man drew it in the drug store, and witness stated that it looked like the same one that was fired in the drug store by the defendant. He further testified that he did not see or notice that any one else was in the drug store when the shooting occurred except Kirsch, the barber, the man who fired the shots, and himself, that Kirsch and the witness were about five feet apart when the man started shooting, and that Kirsch started to the back part of the drug store when the man shooting gave the order, ‘Get to the back, both of you.’

Samuel Hamm, a witness for the people, testified substantially as follows: He started to enter the drug store at about 8 o'clock on the morning the deceased was killed. A man standing near the entrance, who was wearing a pink shirt, said to witness: ‘You better not go in there; you will get into trouble.’ Witness kept on going and ‘got pretty near half way of the building inside and a shot rang out.’ He looked up and saw Kirsch and the man who was doing the shooting and the druggist. He identified the defendant as the man who was doing the shooting and who was then sitting in the courtroom, behind his attorney. He had known him six or seven years, and the defendant lived in St. Louis when he first got acquainted with him. Witness had been in East St. Louis for the last two years, and the last time he saw the defendant was in January or February, 1932, when he met him with Troy Maloney, and he had only seen the defendant twice since he moved from St. Louis. When he stepped into the drug store, the defendant was standing with a gun drawn on the druggist. The druggist ducked down. The defendant fired the first shot at the druggist and then turned and shot at Kirsch, who fell when the fourth shot was fired. The shooting excited witness, and he got out of the drug store as fast as he could. He was the first one out of the drug store, and, when he got out, he ran north up the street, and, while he was running up the street, some one fired a shot in the direction he was going.

William Garvey, the proprietor of a gasoline and oil station located on Fifteenth street, across the street from the drug store, testified that he heard three or four shots fired in the drug store, and then saw Watson, the man wearing a pink shirt, run out of the drug store, followed by a man who looked like the defendant. When four shots were fired, Watson came out of the drug store, and the next man fired two shots ‘backing out.’ Witness saw his back and side of his face, and testified that the defendant looked like that man. Watson ran north on Fifteenth street, then west on Division avenue, the alley. On cross-examination witness stated that he did not see Hamm there. He saw two men run down the street.

A short distance west of Fifteenth street there is an alley that runs from Broadway to Division avenue. Clara Lewis, who lives at the intersection of this alley and Division avenue, testified that on the morning of June 6, 1932, she saw two men run from Division avenue south in the alley and stoop and then throw something in the basement window of a building; that one of these men, Watson, came back north in the alley, and the other man, who looked like the defendant, went on down the alley to Broadway. Two automatic pistols were found in the basement window referred to by this witness in her testimony.

Watson was arrested shortly after the shooting. The defendant was arrested at about 11 o'clock of that morning, at the home of Eddie Cox, at 221 North Seventh street, in East St. Louis. Cox, as a witness for the people, testified that the defendant came to his house at about 8:30 o'clock on that morning.

The defendant did not testify, and the only testimony in his behalf was that he was in the county jail of St. Clair county from December 20, 1931, to June 3, 1932, which evidence was introduced as impeachment of the testimony of Hamm, who had testified that he saw the defendant on a street in East St. Louis in February, 1932.

It is contended by the defendant that the record shows that he did not have a fair and impartial trial. In this connection the first matter referred to is a statement made by the state's attorney to the jurors during the examination of them on their voir dire, that it would be their duty, if the evidence showed ‘a murder mean enough, cold-blooded enough,’ to return a verdict inflicting the death penalty. The bill of exceptions in this case shows that such a statement was made by the state's attorney at least three times in his examination of jurors. In the first instance, no objection was interposed. In the second instance, objection having been interposed, the court said, ‘It is in his discretion to fix the punishment or penalty.’ In the third instance,objection being made, the ruling was, ‘Sustained as to form.’ In a capital case it is proper for the state's attorney to inquire of jurors whether or not they have conscientious scruples against returning a verdict inflicting the death penalty, and the existence of such scruples in the mind of a juror is a proper cause of challenge. Gates v. People, 14 Ill. 433. It cannot be said, however, that in any case of murder it is the duty of jurors, on finding the defendant guilty, to fix the punishment at death. It was improper for the state's attorney to so inform the jurors, but in this case the court sustained the objections interposed to such statement, and correctly stated that the fixing of the punishment was in the discretion of the jury.

After the evidence of the coroner had been given and the examination of the witness Daut by the state's attorney had been completed, and during his cross-examination, the attorney for the defendant asked to have other witness for the people excluded from the courtroom. The court refused to exclude the witnesses, saying, ‘Your request comes too late.’ The exclusion from the courtroom of witnesses waiting to be examined is a matter within the discretion of the trial court. Bishop's New Crim. Proc. General and Elementary, §§ 1188, 1189; Bow v. People, 160 Ill. 438, 43 N. E. 593;Bulliner v. People, 95 Ill. 394. The court might properly have granted the defendant's request in this case, even though some testimony had been taken before the request was made, but it was a matter within its discretion. There is no showing that the defendant was in anywise prejudiced by the court's refusal to grant the request, and such refusal cannot be said to be...