Waller v. People
| Decision Date | 20 April 1904 |
| Citation | 209 Ill. 284,70 N.E. 681 |
| Parties | WALLER v. PEOPLE. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, Saline County; A. K. Vickers, Judge.
Richard Waller was convicted of murder, and brings error. Affirmed.
M. S. Whitley, for plaintiff in error.
H. J. Hamlin, Atty. Gen., and A. E. Somers, State's Atty., for the People.
On September 15, 1902, during an altercation with Joshua Pemberton at West End, in Saline county, the plaintiff in error, Richard Waller, when from 18 to 25 feet from Pemberton, fired his revolver at him, and killed Gus Mitchell, who was reclining on the porch of his mill at one side and from 8 to 12 feet from Pemberton. Plaintiff in error was indicted for the murder of Mitchell, and upon a trial was found guilty, and sentenced to the penitentiary for a term of 18 years.
It is first contended that the judgment is not justified by the facts proved, which are substantially as follows: Gus Mitchell was sitting on the porch of his mill, with his legs over the edge, and Joshua Pemberton was standing on the ground, leaning on the porch with his elbows, and talking with him. Defendant, who had been with a company that had a jug of whisky, and, according to his account, had taken two drinks, came to them, and asked Pemberton whom he voted for the previous spring for school director. Defendant and John Dean had been opposing candidates, and Pemberton replied that he voted for Dean. Pemberton, testified that defendant called him a ‘damned old rascal,’ and kicked him on the knee. Defendant, in his testimony, denied this. Pemberton then picked up a block of water oak 2 inches wide, 3 inches in length, and 1 1/4 inches thick; and, as defendant backed away from him, Pemberton threw the block, striking him on the hand, or perhaps on the hand and nose, as he threw up his hand at the time. Defendant instantly drew his revolver and fired, killing Mitchell. The defense was that the shot was fired in self-defense, although defendant testified that he meant to shoot over Pemberton's head. The evidence justified the jury in finding that defendant provoked the difficulty, and that he did not fire the shot in self-defense. Pemberton was a small man, weighing 122 pounds, and was over 60 years of age. He was not attempting to assault defendant, and did not have any weapon or missile at the time the shot was fired. Defendant was about 39 years old, and weighed about 175 pounds. He was at a safe distance, and was in no danger whatever of any serious bodily harm. He testified that, after throwing the block, Pemberton stooped and picked up a club; but defendant also testified that he fired as quick as he could get his revolver out after he was struck by the small block, and it is quite clear from all the evidence that such was the case. The evidence justified the verdict.
The next proposition of counsel is that the court improperly permitted the people to introduce evidence in rebuttal. Various witnesses on the part of defendant testified that the witness Pemberton, in stating to them the circumstances of the affair, did not say that defendant kicked him before he threw the block. There was no evidence of any contradictory statement by Pemberton, and the testimony in question was for the purpose of raising an inference that his testimony that he was kicked was a recent fabrication. In rebuttal the people were allowed to introduce the testimony of witnesses that, at the time of the occurrence, Pemberton, in stating the circumstances, said that defendant kicked him before he threw the block. The evidence was limited to about the time of the occurrence. As a general rule, proof of statements made by a witness out of court harmonizing with his testimony is inadmissible, but where it is charged that his story is a recent fabrication, or that he has some motive for testifying falsely, proof that he gave a similar account of the transaction when the motive did not exist, or before the effect of the account could be foreseen, is admissible. Gates v. People, 14 Ill. 433;Stolp v. Blair, 68 Ill. 541. It was not claimed that Pemberton had ever made any different or contradictory statement, but the attempt was to show that he had recently fabricated the story, because he did not state on the prior occasions that defendant kicked him. The evidence was limited to its legitimate purpose, and was properly admitted.
It is next objected that the court refused proper evidence on behalf of defendant. Henry Stucker was one of those testifying that, in conversation with him, Pemberton did not say anything about defendant kicking him. He was then asked if Pemberton said anything as to whom defendant shot at, and if he did not say that defendant shot at him and hit Gus Mitchell. No foundation had been laid on the cross-examination of Pemberton for this testimony, and the court sustained an objection to the questions. We do not see in what respect the testimony would have contradicted Pemberton if it had been admitted, and we think the ruling was right.
It is next contended that there was no proof of the cause of the death of Gus Mitchell. The doctor attending Mitchell testified that he was with him two-thirds of the time until his death; that he was suffering from a gunshot wound; that the ball entered the left side, and ranged upward and to the right, passing through the peritoneum and along the intestines, and in several places passed through the coils of the intestines, and passed through the stomach, and upward into the...
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