WRIT OF ERROR to the Circuit Court of Green County; the Hon.
CLEM SMITH, Judge, presiding.
Rehearing denied March 13, 1950.
On May 16, 1949, the defendants, Carson Seger and Curtis Chapman, were indicted in the circuit court of Greene County for the murder of Howard A. Heininger, alleged to have been committed on April 20, 1949. The court appointed William G. Vogt as counsel to represent both defendants. Seger and Chapman were arraigned on May 20. Each entered a plea of guilty, and the cause was continued to May 25 for a hearing upon matters in aggravation and mitigation of the offense. On the day set for the hearing, defendants appeared in court with their attorney. The trial judge admonished defendants as to the effect of their pleas of guilty but they persisted therein. Thereupon, the People introduced evidence in aggravation. Defendants refused to make a statement of any kind or offer any evidence whatsoever. At the conclusion of the hearing, the court sentenced each defendant to death. On June 23, defendants, represented by new counsel who also represents them here, filed a motion to vacate the judgment. Their motion was heard and denied. At the September term, 1949, we granted defendants' application for a writ of error and made the writ of error a supersedeas.
In this court, defendants freely admit they are guilty of the crime of murder. The relief sought is that "their sentence should be commuted to imprisonment in the penitentiary," a non-judicial remedy, (Const. art. V, sec. 13; Ill. Rev. Stat. 1949, chap. 104 1/2,) or, in the alternative, that the judgment of the circuit court be reversed and the cause remanded, with directions to hold a new hearing on matters in aggravation and mitigation of the offense. The substance of the eight errors relied upon for reversal is reducible to five contentions, (1) that the sentence resulted from passion and prejudice; (2) that improper evidence was admitted at the hearing on aggravation; (3) that the trial judge abused his discretion in imposing the death sentence without being fully advised of the facts and without examining any witnesses in mitigation; (4) that defendants were represented by incompetent counsel, and (5) that the court erred in denying their motion to vacate the judgment. We recount the facts relevant to a determination of these issues.
At the opening of the hearing on aggravation and mitigation, the trial judge advised the spectators that no one would be allowed to leave the courtroom during the hearing and admonished them not to make any demonstration one way or the other after he pronounced sentence. Dorothy Heininger, the widow of the deceased, testified briefly to the effect that her husband was Howard A. Heininger, thirty-three years of age, employed as a district manager by the Metropolitan Life Insurance Company, and that they lived in Jerseyville and had three children. Mrs. Heininger further related that, on the morning of April 20, 1949, her husband drove to Carrollton in his 1948 Chevrolet automobile to visit an agent there; that he neither returned that night nor telephoned to explain his absence, and that, on the evening of the following day, she was notified he had been killed. Fred Ballard, a friend of the deceased, and sergeant Wilson Schultz, a member of the State police, testified as to certain details of the search for Heininger on April 21. After receiving word that an abandoned car containing insurance literature had been found on a side road a short distance from the highway between Carrollton and Jerseyville, they proceeded there together, identified the car and, upon investigation, found Heininger's body about 150 feet from the side road. Sergeant Schultz also stated that he was present at the scene of the crime with Seger on the morning of April 26 and heard him narrate the facts and circumstances of the shooting. He also testified that he heard both defendants make their confessions.
Arthur M. Powell, sheriff of Greene County, testified that, on the morning of April 26, Seger was in his custody at the scene of the crime when he told how Heininger had been killed and that he heard both Seger and Chapman make their confessions. Acting upon information obtained from the defendants, the sheriff testified that he had verified Chapman's purchase of a twenty-two caliber revolver in Alton on April 20 and that he had received the same gun from the authorities in Joplin, Missouri, where it had been pawned. The gun and a memorandum of its sale on April 20 were introduced in evidence.
The State's Attorney, conformably to a stipulation with the attorney for the defendants, then offered in evidence written confessions by each defendant. The confessions were substantially the same, both in form and in substance. They were dated April 27 and were signed, witnessed and notarized. Each recited that it was made without force, threat or coercion, with knowledge of the right to not confess, and that no promise had been made by the State's Attorney, or any other officer, for the confession. No contention is made that either confession was involuntary.
Seger, aged nineteen, lived in Alton. Chapman, aged eighteen, lived in White Hall and had attended school in Alton. Both had quit school in their first year of high school.
From their separate confessions, it appears that defendants met in Alton about 9:00 A.M. on April 20 and went to a hardware store where Chapman purchased a twenty-two caliber target revolver. They then hitchhiked from Alton to Carrollton, arriving about 1:00 P.M. In Carrollton, Chapman turned the gun over to Seger and they immediately began to "hitch" a ride back to Alton. Heininger, who was a stranger to them, offered them a ride. Chapman took the seat beside the driver and Seger sat in the back seat. According to Seger, "We were looking for any car that we could find with the purpose of robbing the occupant or occupants of the car to get some money." Chapman's statement was that, "We decided when he pulled up that he might have some money on him and we could hold him up." After crossing the bridge at Macoupin Creek, Seger pulled out the gun and directed the driver to turn left at the first side road. Heininger turned down the next side road, as directed, and proceeded to a point just beyond a railroad crossing where he turned the car around and, upon orders from Seger, stopped. Defendants then took Heininger's billfold and ordered him to walk into the field beside the road. Defendants followed. When they were about one hundred feet from the road, Seger asked if there was any rope in the car. Heininger replied in the negative. As Heininger started to turn around, Seger shot him three times. When Heininger fell to the ground, Chapman seized the gun from Seger's hand and shot him two more times. Defendants then carried Heininger's body about ten feet to the bank of a gulley, rolled it down the bank, and threw his hat and brief case near his body. Upon returning to the car, defendants were unable to start it, and so were forced to begin their flight on foot. They fled as far west as Oklahoma City, Oklahoma, and then returned to Alton. Defendants were arrested in Alton on April 26 as they were debarking from a bus upon their return.
An autopsy report by Dr. Ferdinand Gorecki was offered in evidence. When defendants' attorney pointed out that the report was not signed, the prosecution called William H. Wolfe, county coroner, as a witness. Wolfe testified that he conducted the inquest and that the autopsy examination had been performed by "Dr. Ferdinand I am not sure of that last name they said." He identified the proffered exhibit as the autopsy report which the doctor had submitted to him, whereupon it was received in evidence without objection.
Dr. Groves B. Smith, an alienist, who examined the defendants, made two written reports. Defendants' attorney stated he had read the original reports and they were admitted in evidence without objection. The report on Chapman, so far as pertinent, revealed that he was of low average intelligence; that, after leaving school he had been employed both in Alton and on a farm near Alton owned by a brother-in-law; that he stated he had everything he wanted, and that he had twice been convicted of stealing an automobile with Seger, once in 1946, when he was admitted to probation and, again, in 1948, when he served two months in the county jail as a condition to being admitted to probation. Further findings were that he was nervous and very evasive, overly suggestible, extremely emotionally immature, and easily swayed and dominated by others. On the other hand, Dr. Smith also reported that he was adequately oriented in all fields; that he knew the nature of the acts for which he was indicted; that he knew the difference between right and wrong, exhibiting a clear recognition of murder; that he was free of mental disease, and that he had the power to inhibit his antisocial behavior but persisted, knowing it would sooner or later lead him into trouble.
As to Seger, Dr. Smith found that, after leaving school, he had several temporary jobs and spent much of his time in pool halls and cigar stores; that he was convicted of stealing an automobile in 1946, and, again, in 1948, and that, on the date of the offense charged, he was working and had money. According to the alienist, Seger is adequately oriented in all fields, his stream of thought is relevant and coherent, he has no hallucinations, delusions or paranoidic trends and has full knowledge of the nature of the act which he is alleged to have committed. Seger was neither evasive, nervous, emotional or suggestible. The doctor reported he was calm, cool and alert, that he was an extremely determined person motivated by a desire to do as he pleased, and that he showed no remorse for his acts or fear of future consequences, stating, "If I am guilty I should get what is coming to me." From his examination of Seger, Dr. Smith concluded that there were no mitigating circumstances in his case.
The last two exhibits, introduced by the prosecution without objection, were a report of the Bureau of Criminal Identification and Investigation of the Department of Public Safety, disclosing that lie-detector tests given to defendants revealed that their confessions were truthful, and a laboratory report from the Division of State Police in the Department of Public Safety relative to ballistics tests and other tests.
The attorney for defendants informed the court that his clients did not desire to offer any evidence or to object to any evidence. After the State's Attorney said he would like to have the defendants make some record in the case so as to show whether any evidence could be introduced in mitigation of the offense, the trial judge remarked that it was their privilege to offer evidence in mitigation and, likewise, their privilege to refuse to testify. Counsel for defendants announced that he had again talked to his clients and that they reiterated their desire neither to make a statement of any kind nor to offer any evidence whatsoever. Upon receiving an affirmative reply to an inquiry of counsel whether ...