WRIT OF ERROR to the Circuit Court of Mason County; the Hon.
MAURICE E. BARNES, Judge, presiding.
MR. JUSTICE MAXWELL DELIVERED THE OPINION OF THE COURT:
Plaintiff in error, Thomas Skelly, was indicted and tried jointly with Merle Prohaska and Melvin Hodson for the crime of murder in the killing of one John Barclay at Havana, Mason County, Illinois, on April 6, 1947. The jury found all three defendants guilty and fixed their punishment at life imprisonment. Motions for new trial and in arrest of judgment were overruled and the defendants were duly sentenced and committed to the Illinois State Penitentiary.
The facts in this case have been fully set out in People v. Hodson, 406 Ill. 328, and will not be repeated here.
Plaintiff in error, hereinafter referred to as defendant, pleaded self-defense at the trial of this case and contends that the only evidence on the start of the affray between him and the deceased, when they met on the street, was his uncontradicted and unimpeached testimony that deceased attacked him by striking him in the mouth with a pistol, that a scuffle ensued in which both fell to the pavement, that deceased had a pistol in his hand and that he, the defendant, shot deceased in fear of his life or of suffering great bodily harm; that there being no other direct evidence as to how the fight started, the court and jury were bound by his testimony and his plea of self-defense was established. Defendant cites and relies upon People v. Ahrling, 279 Ill. 70, and People v. Davis, 269 Ill. 256. The People contend that the rule relied upon by defendant is subject to the exception that there may be such an inherent improbability in the statements as to authorize the court and jury to disregard them, even in the absence of direct conflicting evidence. The People cite and rely upon the same two authorities cited by defendant.
The two cases cited by the parties state the abstract rule of law to be that the positive testimony of a witness, uncontradicted and unimpeached, either by positive testimony or by circumstantial evidence, intrinsic or extrinsic, cannot be disregarded but must control the decision of the court and jury, unless there is such an inherent improbability in the statements of the witness as to induce the court or jury to disregard his evidence even in the absence of any direct conflicting testimony. Neither court nor jury can wilfully and capriciously disregard such testimony. (Larson v. Glos, 235 Ill. 584.) It therefore becomes necessary for the court to consider all the competent evidence, direct and circumstantial, to determine if the rule relied upon by defendant applies in this case or whether the defendant's testimony comes under the exception to the rule as contended by the People.
Here, the uncontradicted evidence shows that defendant Skelly and co-defendant Prohaska drove from place to place in defendant Hodson's car, over a period of approximately 13 hours seeking the deceased, making numerous inquiries as to his whereabouts; that each was armed with a loaded pistol; that they found deceased and he was shot and killed by defendant; that defendant fled the scene of the shooting, throwing his gun in a river; that when arrested defendant denied any knowledge whatsoever of the shooting. All this is admitted by defendant and explained by him in his testimony given at the trial. Both defendant and Prohaska testified that they were looking for deceased to collect a debt deceased owed Prohaska so that Prohaska could make a loan to defendant; that they were taking their pistols to a gun dealer to sell them; that when they found deceased, defendant was taking him to Prohaska who was seated in the car so Prohaska could talk to him about the money; that deceased struck defendant in the mouth with a pistol, a scuffle occurred and defendant shot deceased in self-defense. Prior to the trial, the defendant had made written statements to the police officers which, after a preliminary inquiry by the court as to their competency, were admitted in evidence as the free and voluntary statements of defendant. In these statements the defendant stated that he was told by defendant Hodson that he wanted a certain John Barclay (the deceased) kept from appearing against him in Federal court and offered $500 for doing so; that Hodson said either to get a statement out of Barclay that he knew nothing about the Federal court case or to get rid of him so he would not appear and that he did not care how he got the job done; that Hodson furnished him the gun with which he killed deceased; in one of these statements defendant said, "It was never my intention of using this gun for anything but intimidation." Each of the statements recited the same version of the encounter between defendant and deceased as testified to by defendant at the trial.
From this evidence we cannot say that the court and jury willfully and capriciously disregarded the defendant's testimony as to the start of the affray between him and the deceased. The uncontradicted evidence alone, admitted by defendant in his testimony at the trial, the extended search for the deceased, the weak explanation of their possession of loaded pistols, defendant's flight from the scene of the crime, and his denial of any knowledge of the shooting when apprehended raises a serious doubt as to the probability of the truthfulness of his testimony. Add to this uncontradicted evidence the fact that defendant made his written admissions which he later refuted, some of which admissions were corroborated by other evidence, and there is ample evidence for the jury, who saw and observed the witnesses, to find the testimony of the defendant in support of his plea of self-defense was inherently improbable and unworthy of belief.
The case at bar is wholly unlike the cases relied upon by the defendant. In the Ahrling case, the burned remains of defendant Ahrling's wife were found in the ruins of their farm home which had been destroyed by fire. The home was seen to be on fire between four and five o'clock on Monday morning. Defendant's sister and brother-in-law testified that defendant had come to their home, about eight miles from defendant's home, on Sunday morning before the fire on Monday, and had remained there all day Sunday, all Sunday night, and returned to the scene of the fire with the brother-in-law on Monday morning and found the house burned to the ground and with the burned remains of defendant's wife later found in the ruins. There was absolutely no evidence that defendant was at or near his home during the period from Sunday morning until Monday morning when he returned with his brother-in-law and another witness whom they met on the way. There was no evidence at all as to how the fire started. The State contended that defendant killed his wife early Monday morning, placed her body in the basement and set fire to the house, then went to the home of his sister and brother-in-law and that their testimony that he came on Sunday and remained there was false. The only evidence that any criminal agency was involved in the death of deceased was circumstantial, based on some peculiar actions and statements of the defendant prior to the fire. Defendant did not testify. The court discussed the rule relied upon by defendant here in considering the testimony of Ahrling's sister and brother-in-law and found that if their testimony was to be believed it would have been impossible for defendant to have murdered his wife; there was no evidence and no reason to disbelieve them and defendant's conviction was reversed. We do not think the Ahrling case is comparable to the case at bar. There, the testimony was from witnesses other than the defendant; there was no evidence of any kind, direct or circumstantial, contrary to their testimony, and nothing to contradict or impeach them. Here, the testimony is defendant's, his version of the start of the affray between him and deceased is contradicted by reasonable inference from the circumstances leading up to the affray, by his subsequent flight, his denial of all knowledge of the shooting when apprehended, and his self-impeaching statements and testimony.
In the Davis case, defendant was indicted for embezzlement of $500,000 in money, notes and securities from his mother-in-law. The evidence disclosed that he was managing her estate under a power of attorney from her and, in the management of the complicated business affairs, her property was dissipated. The defendant failed to make a complete accounting in writing because some of his records had been damaged by water and were illegible. At the trial he gave his testimony explaining the transaction, upon which the jury based its verdict, and there was no other evidence that such transaction was a criminal act. The court there said his testimony was uncontradicted and that it was not so inherently improbable or so contrary to any other facts in evidence as to justify the court or jury in disregarding his testimony on that question. Here again, as in the Ahrling case, there was no contradictory evidence, direct or circumstantial, to contradict or impeach defendant's testimony, it was not inherently improbable and the court and jury were bound by it. Neither of these cases is comparable to the instant case where there is both direct and circumstantial evidence contradicting defendant's testimony.
The defendant further contends that the court erred in admitting in evidence the written confession of his co-defendant Prohaska, made out of his presence and without his consent, without deleting therefrom all matters which implicated him, and especially certain statements which Prohaska attributed to defendant. The first three paragraphs of this confession recite what was done by Prohaska and Hodson in Hodson procuring a gun before defendant Skelly became involved. All the rest of the confession recites in detail everything that Prohaska and defendant did from the time defendant got into the car with Prohaska until they separated after the killing. It states that as they were driving from Peoria to Ellisville defendant told Prohaska that he was going to bump Barclay off; that he had been hired to kill Barclay; it relates the stops they made to make inquiry of Barclay's whereabouts, recites a stop at a filling station and the conversation with the attendant, a stop at the Ellisville Junction; a stop at a garage and junk yard; a stop by defendant at the Wagon Wheel tavern; a stop at a filling station in Canton, and finally their stop at the Smoke House tavern where they found Barclay; that defendant then said he was going to let Barclay have it right there; that Prohaska left the tavern, saw Barclay run from the tavern and he and defendant followed him in the car; that defendant got out of the car, ran across the street and he and Barclay began to scuffle; that Barclay fell to the pavement, and right after that he heard two or three shots fired; that defendant ran back to the car and fired three shots through the left front door of the car at a man approaching; that defendant fell from the car and he drove away at a high rate of speed. The confession then relates his abandonment of the car and his return to Peoria.
Prohaska's confession was admitted in evidence, over defendant's objection, after the jury was instructed that it should consider it as evidence against Prohaska, only, and was read to the jury after defendant's name had been deleted therefrom and the letter "B" substituted wherever his name appeared. Defendant contends this deletion was inadequate, that all the other evidence identified him as the "B" in this confession, and he strenuously objects to the court's failure to delete the statements allegedly made by him in regard to his intention to kill Barclay. The People contend that by deleting defendant's name from this confession nothing remained therein to identify defendant, further deletion would weaken the confession as to the confessor, and it was therefore admissible as to Prohaska with the proper instructions to the jury.
Confessions or admissions of one charged with a crime, made after the commission of the crime and out of the presence of a co-defendant, are not competent as against the defendant. (People v. Patris, 360 Ill. 596; People v. Barragan, 337 Ill. 531; People v. Buckminster, 274 Ill. 435.) But where the co-defendants are tried together, it is the law of this State that such admission or confession can be admitted against the one who made it with instructions to the jury that it is only admitted against that one defendant and is not to be considered as evidence against his co-defendant. (People v. Siegal, 362 Ill. 389; People v. Betson, 362 Ill. 502; People v. Swift, 319 Ill. 359; People v. Young, 316 Ill. 508.) But where it can be done, without weakening the effect of the confession against the one who made it, all reference to the co-defendant should be deleted from the confession before it is heard by the jury. (People v. Hodson, 406 Ill. 328; People v. Patris, 360 Ill. 596.) Defendant's name and all identifying matters should be deleted. People v. Durand, 321 Ill. 526.
It is true that the deletion of the defendant's name removed all matter identifying him so far as that confession, standing alone, is concerned. It is equally true that other evidence, including defendant's own written statements introduced by the People, positively identify defendant as the "B" in Prohaska's confession. The State introduced witnesses who identified defendant as being the person who stopped and inquired regarding the whereabouts of Barclay at each of the places and at the times that Prohaska's statement said "B" did, and introduced witnesses who identified defendant from his fingerprints taken from the car described in Prohaska's confession. In addition to this direct evidence, at the same time and in the same offer with Prohaska's confession, the State introduced three statements signed by both defendant and Prohaska which recited that defendant accompanied Prohaska in the search for ...