WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
CHARLES E. BYRNE, Judge, presiding.
MR. JUSTICE CRAMPTON DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 15, 1950.
An indictment was returned by a Cook County grand jury in September, 1947, wherein the plaintiff in error, Frank Griswold, was charged with the crime of murder, he having admittedly shot and killed his wife, Agnes.
Griswold, when tried before a jury, was represented by counsel selected and paid by him. The defense of accident or misadventure was interposed. The trial court allowed the People to present an instruction embodying a manslaughter verdict, and the jury found defendant guilty of that offense. Written motions for a new trial and in arrest of judgment were overruled, and defendant was sentenced to the penitentiary for not less than four nor more than eight years.
The defendant is represented in this court by new counsel of his selection. Certain facts are undisputed: Defendant married Agnes in 1935, she then being the mother of four children by a previous marriage. Two children were born of the union. Beth, the eldest, was eleven when her mother was killed, and she is the only living eyewitness of that event other than defendant. Husband and wife were addicted more or less to the use of intoxicating beverages, and Agnes' proneness therefor with her habit of staying out to late hours was the cause of quarrels between them. Following the marriage, Agnes worked in taverns as a dice girl at different times before and after the defendant became a probationary policeman in March, 1946.
On August 31, 1947, defendant worked on the four to midnight shift and told Agnes he would be home on the morning of September 1. He was brought home shortly after midnight by friends, who waited while he changed from his uniform to civilian clothes. While home he endeavored, by phone, to contact Agnes at a tavern where she was working from nine o'clock P.M. to two o'clock A.M. as a dice girl. He was unsuccessful, and, after observing Beth and the baby were asleep, he left with his friends for drinks and relaxation. About three o'clock in the morning he phoned Agnes, and told her to go home and take care of the children.
Defendant drank about a half dozen glasses of beer prior to returning home about 4:15 in the morning. Beth and the baby were home, but Agnes was not. He finally went to sleep about 5:15 A.M. and awakened about six o'clock to find Agnes in the bed. He asked in what tavern she had been after closing hours and she would not answer, although the question was asked many times. Agnes finally sat up, feet resting on the floor, but persisted in not answering the question. Defendant took his pistol out of the bureau drawer with his right hand and repeated the question; when Agnes saw the pistol, she called for Beth.
From here on there is a lack of harmony in the testimony, and consideration must be given to Beth's version of what followed. The defendant testified that Beth, clad in a slip, and not wearing a blouse or sun pants, immediately came into the bedroom, slipped in between them, and he brushed her away with his left hand as he was facing the bed. Agnes, he said, simultaneously stood on her feet and grabbed the gun; when she did so, he pulled back and it was discharged. Agnes sat back and then slumped back on the bed, her feet remaining on the floor. Beth, he said, was standing back of him when the gun was fired. Defendant said his purpose in exhibiting the gun to Agnes was merely to frighten her into telling in what tavern she had been and he had no intention whatever of shooting her. He testified that he did not threaten to kill Agnes, and that Beth did not say, "You won't shoot anybody," and that she did not say, or do, anything, other than throw herself around her mother. The defendant stated that during all his married life with Agnes he had never threatened to take her life.
Beth, when testifying on direct examination, said in substance: Her mother called to her in a regular tone of voice about six o'clock in the morning, and she entered the bedroom occupied by her father and mother. She could not remember whether her mother was standing up, sitting up, or lying on the bed, and she was not sure her father was standing up. She did state with certainty how each was dressed. Her father was asking her mother where she had been, and she did not think her mother said anything, although her father asked the question more than once. She saw him obtain the gun from the dresser drawer and, while he held it in his hand, heard him tell her mother, "I will kill you." When her father made the threat, she said, "I jumped onto my mother," who was either lying down or sitting on the bed, knees bent, feet almost touching the floor, and she believed her mother's head was on the pillow. She put her hands on her mother's head and told her father, whom she believed was standing at the time, "You are not going to shoot anybody." The gun went off while it was close to her right side, the muzzle being right up against her mother's body. Her mother did not make any movement after the shot was fired, and the position of the body was not changed before the arrival of the police a few minutes after the shooting. Following the shooting, she put on a dress, and while doing so, noticed black marks on the right side of her body just above the hip, and those marks were not there before the shooting. She was taken to the police station, and there gave her version of the shooting to the police and the assistant's State's Attorney who afterwards represented the People at the trial. She also testified at the coroner's inquest.
On cross-examination Beth said in substance: She clothed herself that night in a two-piece pajama suit, the top piece buttoning in the front. She could not remember what position her mother was in on first entering the bedroom, and she had no idea as to the length of time she was in that room. Her father was standing when she first entered, but she was unable to say how close he was to her mother. She was positive her father obtained the gun from the dresser drawer after he had asked her mother where she had been. She then stated, that although the gun came from the dresser, she could not remember whether her father took it from the drawer.
She said she got the black mark on her body early that morning when the gun was fired past her. Before the shot was fired, her father was trying to get her out of the way; but she threw herself over her mother so her body partially covered her mother and her hand was around the latter's head.
William O'Malley, a police officer, testified to reaching the scene of the shooting within fifteen minutes after it happened, and to seeing Beth walking up and down from the kitchen to the bedroom, dressed in panties and a little striped blouse. People's Exhibit 1, being a blouse, was exhibited to the witness, and he said it was the blouse he saw on Beth when he entered the apartment. He went into the bedroom and examined the body of Agnes, and found her head was on the edge of a pillow corner, her feet over the edge of the bed and the toes just about touching the floor.
Joseph Nicol, a firearms technician at the Crime Detection Laboratory of the Chicago Police Department, testified to examining People's Exhibit 1 on September 3. By microscopic examination, and the use of chemicals, he found powder residue on the lower right portion of the hem of the blouse immediately below the sleeve and about an inch and a half toward the front of the garment. He also made an examination of People's Exhibit 4, which was the slip worn by Agnes when shot. He examined the bullet perforation in the slip for the presence of powder residue, using the same tests he applied to People's Exhibit 1. He found such residue on the blouse was caused by the residue in the gases blowing out from the side of the revolver through the gap between the cylinder and the barrel, and the residue found on the slip came from the muzzle of the revolver. This witness was not cross-examined, and his testimony stands uncontradicted.
It is the theory of defendant he was either guilty of murder or was innocent, and that the verdict of manslaughter, under all the circumstances apparent of record, ...