WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
JOHN J. LUPE, Judge, presiding.
MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:
Plaintiff in error, Sam McClain, was indicted by the grand jury of the Cook County criminal court for the crime of murder in November, 1949. The indictment consisted of two counts. A plea of not guilty was entered and a jury trial held in the criminal court of Cook County. The plaintiff in error was adjudged guilty of murder and his punishment fixed at thirty-five years in the penitentiary. He now prosecutes this writ of error, contending that the evidence does not establish that he is guilty of murder beyond a reasonable doubt, that the trial court judge improperly instructed the jury, and that the defendant was prejudiced by the court's allowing the People's witnesses to identify the weapon used.
The undisputed facts evidenced by the record show that on October 7, 1949, at about 9:40 P.M., Sam Slater was killed by shots fired from a gun held in the hand of Sam McClain, the plaintiff in error. The homicide occurred in the rear room of the Cut Rate Liquor Store, a tavern operated by one Stanley Biel, located at 1501 Wentworth Avenue, Chicago Heights.
The plaintiff in error and the deceased had been employed for some time in the same department of the Gold Seal Roofing Company at Chicago Heights. Earlier in the day of the killing, while plaintiff in error and the deceased were working, they had a conversation with reference to the negotiation of a wager between them on a world series baseball game to be played that afternoon. McClain declined to wager unless the foreman under whom they worked would guarantee the bet if Slater lost. Silvio Rosati, the foreman, declined to do so.
After the game, the deceased, claiming to have won the bet, demanded that McClain pay him the five-dollar wager. McClain refused and an altercation developed, during which the deceased threatened McClain with a hammer. After leaving work that day McClain proceeded to several business establishments to pay his monthly bills, one of which was Salo's, a general merchandise store, dealing in household equipment and supplies. After paying his bill, a clerk suggested that he take with him a gun he previously left there for repair. Plaintiff in error took the gun and procured a round of ammunition. This visit to Salo's occurred about five o'clock in the afternoon. Later that evening McClain visited the place of business known as Cora's Tavern, located at the northwest corner of Fifteenth Street and Wentworth Avenue in Chicago Heights. He there encountered some friends whom he joined and soon thereafter was accosted by the deceased, who again demanded the payment of the wager. They became embroiled in an argument and were separated by Jack Gardner, a special police officer, who escorted them from the tavern.
Jack Gardner testified that this happened from fifteen to twenty minutes before the shooting which later occurred in the Cut Rate Liquor Store. The deceased then, apparently after leaving Cora's Tavern, entered the Cut Rate Liquor Store located on the southwest corner of Wentworth Avenue and Fifteenth Street and went back of the partition inside the rear room. According to the testimony of one Charlotte Watkins, she entered the Cut Rate Liquor Store about 9:30 o'clock and upon entering saw Slater standing just back of the partition inside the rear room and to the left of the door near the table. She was acquainted with Sam Slater and immediately walked back and engaged him in conversation. This is corroborated by the testimony of the bartender, A.G. Houston, who testified he saw Charlotte Watkins and the deceased so engaged in conversation and who further testified that while this conversation was taking place he saw McClain, the plaintiff in error, enter the tavern, walk back to the rear room, and go about half way to the washroom in the rear, and that thereupon McClain turned and stepped back a few paces and fired the gun repeatedly at Slater. Four shots were fired according to Houston. At the first shot Slater started to stagger and fell to the floor. Two shots were fired after Slater was on the floor. Charlotte Watkins further testified that at the time Slater was shot and while she was talking to him "he was standing at the table looking at the television with his right hand resting on the table and his left hand beside him * * * I and Sam still had conversation and as we were through he was standing there looking at the television and talking with I. That is when this fellow McClain fired. I did not see McClain come in. I only saw him after he first fired the shot." This woman stood within two feet of the deceased when the first shot was fired.
Houston, the bartender, further testified that at the time the shots were fired McClain was within six feet of the deceased and that there was no conversation between McClain and Slater at that time.
One Martha Lathan, who was also in the tavern at the time of the shooting, testified that she saw Slater come in, that she later saw Charlotte Watkins come in, and observed Charlotte Watkins and the deceased talking just inside the rear room. She testified McClain later entered the room and then she saw McClain shoot the deceased, and that at that time Slater was standing by the table and did not move before the shots were fired.
All of these eyewitnesses related essentially the same account of the pertinent facts relative to the affair. There are no material inconsistencies between them, but each supports and substantiates the observations of the other. Although Houston, upon cross-examination, contradicts some of his testimony given at the coroner's inquest, his contradictions were not in any case of these pertinent facts.
Stanley Biel, owner of the tavern, also testified that he saw Sam McClain enter the tavern and soon thereafter heard shots from the back room.
The testimony of all these witnesses shows no immediate provocation upon the part of the deceased. It is admitted by the defense that Sam Slater was killed by shots fired by Sam McClain. There were six shots fired in all, five of which struck Sam Slater bringing about his immediate death. The evidence of the People is clear and convincing of the guilt of the defendant. Plaintiff in error claims, however, that a doubt is raised as to his guilt because of his claim of self-defense and the testimony in the record supporting it.
McClain, in his testimony, states that he entered the Cut Rate Liquor Store, and stood by one Isaiah Jackson, who was playing the slot machine. Soon thereafter the deceased entered the tavern and upon seeing McClain opened his knife. The deceased then asked him for the five dollars which he refused to pay. Then declaring he was going to kill him, while calling him a vile name, he reached into his pocket where he had just placed the open knife.
Isaiah Jackson also testified that the deceased entered the tavern after McClain. Jackson had his back to McClain at all times, heard Slater demand money, or threaten McClain, and could not remember seeing anything in McClain's hand. Other than the testimony of Jackson, there is no support whatever offered by the defense for McClain's story. No one else that testified saw any scuffling or heard any words pass between McClain and the deceased before the fatal shots were fired. It is even controverted as to whether there was a slot machine in the tavern on that fatal night, no conclusive proof being presented either way. Although there is evidence in this record that there had been a prior attack on McClain by the deceased with a hammer, the witnesses for the People who testified as being in the Cut Rate Liquor Store, agree that the deceased said nothing to the plaintiff in error and did not accost him in any manner.
We are thus brought to the consideration of whether a reasonable doubt could be entertained as to the guilt of the plaintiff in error from the evidence presented. On review this court will not disturb a verdict of guilt on the basis that the evidence is not sufficient to convict unless the evidence is so palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory as to justify entertaining a reasonable doubt of defendant's guilt. (People v. Rudnicki, 394 Ill. 351; People v. Holt, 398 Ill. 606; People v. Smith, 404 Ill. 125.) The evidence here on self-defense is irreconcilably in conflict, not ...