WRIT OF ERROR to the Circuit Court of Mason County; the Hon.
MAURICE E. BARNES, Judge, presiding.
MR. JUSTICE SIMPSON DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 18, 1950.
Plaintiff in error, Melvin Hodson, was indicted and tried jointly with Merle Prohaska and Thomas Skelly for the crime of murder. After a jury trial in the circuit court of Mason County, all three defendants were found guilty of murder and sentenced June 28, 1947, to life imprisonment in the penitentiary. Hodson brings this writ of error to review the record of his conviction.
April 6, 1947, at about 2:30 o'clock in the morning, a night policeman for the city of Havana, came upon two men struggling on the pavement near a tavern. One of the men raised up and fired two shots into the body of the man who was down. The man who fired the shots ran to a nearby automobile which drove away at high speed after three shots had been fired through the window at the night policeman. The man who was shot, John Barclay, died later in the day. About 1:30 in the afternoon of the same day an abandoned 1939 Plymouth sedan was found by a State policeman about three miles west of the city of Springfield. The car was promptly identified as belonging to plaintiff in error, and he was arrested about an hour later in the city of Kankakee, where he had gone the previous day. Fingerprints taken from inside of the car, the following day, were identified as belonging to the other two defendants, Merle Prohaska and Thomas Skelly. Prohaska was immediately arrested in Pekin, while Thomas Skelly was not arrested until about ten days later in Peoria.
April 17, 1947, Prohaska signed a confession in the sheriff's office at Havana, in which he recited that he was employed by plaintiff in error, and that on April 4, 1947, he and plaintiff in error drove to Canton in the 1939 Plymouth sedan belonging to plaintiff in error, and called upon a gun dealer there for the purpose of buying some 32-calibre ammunition; that the dealer had no ammunition of that calibre; that plaintiff in error on that occasion purchased a 32-calibre automatic pistol from Prohaska for $45, and put it in his front pocket; that on the way back to Peoria plaintiff in error asked Prohaska if he knew where John Barclay was and said that he had already given a couple of fellows some money to knock off Barclay.
The confession further stated that on the next day Prohaska was driving Hodson's Plymouth sedan in Peoria when he saw Thomas Skelly on the street and stopped and let him into the car; that Skelly asked him about the whereabouts of John Barclay and said that plaintiff in error, Hodson, had hired him to kill Barclay; that Prohaska and Skelly then drove to Ellisville and made inquiry for Barclay; that from there they drove to Canton and made further inquiry regarding Barclay, and finally drove down to Havana where they found Barclay in a tavern on Main Street; that Prohaska and Skelly entered the place and Skelly indicated that he was going to kill Barclay right there; that Prohaska walked back outside and Skelly followed him; that in a few moments Barclay came out, and Barclay and Skelly got into a scuffle and that Prohaska heard two or three shots fired and saw Skelly run back to the car and try to get in; that Skelly fired three shots through the left door of the Plymouth sedan directed at the man who was approaching the car on foot; that Prohaska started the car and left the vicinity at a high rate of speed; that Skelly fell out as the car got underway; that Prohaska became confused in his directions and got on the Springfield road and continued in that direction until the car quit on him near the outskirts of Springfield; that at Springfield he took a bus back to Peoria where he arrived about 10:45 in the morning of April 6; that the 32-automatic used by Skelly in shooting Barclay was the same gun which Prohaska had on the day before sold to plaintiff in error.
On the day following Prohaska's first confession, Thomas Skelly executed a confession in which he recited that he had telephoned Prohaska on April 4 and tried to borrow some money from him; that Prohaska later came to his house with plaintiff in error, who told Skelly that he would pay him $500 if he would keep Barclay from appearing against him; that the next day Prohaska and Skelly left Peoria for Ellisville in search of Barclay and went from there to Canton and from Canton to Havana before they discovered him in a restaurant where Prohaska spoke to Barclay; that they then went outside and waited for Barclay to leave; that about a half hour later Barclay came out and Skelly followed him around the corner and asked him to come over to the car; that as they approached the car Barclay spun around and hit Skelly in the mouth with a pistol and that they fell to the ground as they struggled and Skelly took out his pistol and fired it twice into Barclay's body; that Skelly then ran to the car which started up and threw him off; that Skelly then picked up a ride which took him back to Peoria; that if Barclay had not pulled a gun, Skelly would not have killed him.
Later the same day Skelly made another written confession, in substantially the same form as the one made previously, which was also signed by Prohaska. In still another written statement made the same day, also signed by Prohaska, Skelly stated that plaintiff in error told him on the evening of April 4 that Prohaska would pick him up in a car Saturday morning and go with him to look for Barclay; that he would leave a gun in the glove compartment in the car for Skelly's use; that Saturday morning when Prohaska called for him in the car of plaintiff in error he found a 32-calibre automatic pistol in the glove compartment and used that gun in shooting Barclay; that plaintiff in error had told him that he had purchased the gun from Prohaska on the evening of April 4.
After the last two statements had been made by Skelly, and signed also by Prohaska, plaintiff in error was brought over to the sheriff's office from the county jail and these two confessions, as signed by his two co-defendants, were read aloud in Hodson's presence. At that time, in response to questions put to them by the officers present, Prohaska and Skelly each said that the statements contained in the confessions were true. The State's Attorney then asked plaintiff in error what he thought about the confessions of Prohaska and Skelly, and plaintiff in error made no reply except that he shrugged his shoulders.
All of the confessions made by his two co-defendants were admitted in evidence over the objection of plaintiff in error, Hodson. The first written confession made by Merle Prohaska, on April 17, in the sheriff's office at Havana, as read to the jury, had Hodson's name deleted from it, and inserted in place of his name was the letter "A." The court instructed the jury to disregard this confession as to the defendants, Skelly and Hodson. In the first written confession signed by Thomas Skelly, as read to the jury, the name Hodson was deleted and the letter "X" inserted in place of his name. This confession was admitted in evidence as to both Skelly and Prohaska, who had signed it, but not as to Hodson.
The two supplemental confessions made by Thomas Skelly on April 18, both of which were also signed by Prohaska, contained the name of Hodson without deletion and were both admitted. All four of the confessions contained language specifically charging Hodson with employing Prohaska and Skelly to kill Barclay. The court instructed the jury that the two later written confessions of Prohaska and Skelly, which were read aloud in Hodson's presence, were not to be considered by the jury in determining the guilt or innocence of plaintiff in error, Hodson, except in connection with his conduct or words spoken, if any, at the time such confessions were read aloud, in his presence, and then only in connection with all the other facts and circumstances admitted in evidence bearing upon the guilt or innocence of plaintiff in error.
Error is assigned on the refusal of the court to delete from the first confessions of Prohaska and Skelly, which were admitted in evidence only as to those two defendants, all reference to plaintiff in error, Hodson. In each of these confessions, as read to the jury, a letter of the alphabet had been substituted wherever the name Hodson appeared. These confessions contained references to the address where Hodson lived, the ownership by Hodson of the Plymouth car which Prohaska was driving at the time Barclay was found and killed, Hodson's ownership of the pistol which killed Barclay, and a recital that Hodson had hired Prohaska and Skelly to kill Barclay. The mere substitution of a letter of the alphabet in place of plaintiff in error's name, under the circumstances, particularly where two other confessions containing his name and containing substantially the same statements concerning his connection with the crime, were admitted in evidence, could not have deceived anyone as to the identity of the person mentioned in the confessions of Hodson's co-defendants.
It is the law of this State that the voluntary confession of one person made after the commission of the crime cannot be admitted against a co-defendant unless made in the presence of the co-defendant and assented to by him. (People v. Buckminster, 274 Ill. 435; People v. Patris, 360 Ill. 596.) In the Buckminster case we also held that if that part of the confession pertaining to the guilt of a co-defendant can be properly left out without in any way weakening the confession as to the one who made it, then the court should not admit in evidence that part of the confession which implicates the co-defendant.
The first four paragraphs of Prohaska's first confession had to do with facts which were preliminary to the actual killing of Barclay and contained repeated references to plaintiff in error's connection with a plan to commit the murder. The remainder of Prohaska's first confession contained a recitation of the facts concerning the actual killing of Barclay, without any reference to plaintiff in error, with the exception ...