WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
JULIUS H. MINER, Judge, presiding.
Rehearing denied September 10, 1952.
The defendant, Bernice Davis, was indicted by the grand jury of Cook County on two separate charges of murder. After trial before the court without a jury in cause No. 50-1289, defendant was found guilty of the murder of one Edward T. Crowley and sentenced to death by electrocution. It was then stipulated that the evidence in cause No. 50-1290 would be the same as that in 50-1289, whereupon defendant was also found guilty of the murder of Donald E. McCormick and the same sentence pronounced. The causes are here upon writs of error to review the record of the trial court.
Since one of the assignments of error relates to the legal sufficiency of the evidence to sustain the convictions, we shall first direct our attention to the facts adduced at the trial.
Both deceased individuals were members of the Chicago police department. They were plain-clothes officers assigned to the robbery detail under the direction of sergeant John J. Hanrahan. On July 13, 1950, the Chicago police department received a telephone call from the chief of police of Weirton, West Virginia, stating that a robbery had been committed there and that the robber was known to have called by telephone the number Taylor 9-8321 in Chicago. He requested that the Chicago police investigate. Sergeant Hanrahan assigned officers Crowley, McCormick, and Patrick Driscoll to the investigation. The officers found that the telephone number given was listed to one Bernice Davis at 2343 West Maypole Avenue. On July 14, 1950, the three officers went to that address expecting to interview a woman named Bernice Davis. They arrived there about 2:15 P.M. and parked their squad car on the north side of West Maypole Avenue across the street from number 2343 which was a two-story building located on the south side of the street. Defendant, Bernice Davis, lived in the second-floor apartment of this building with his wife, Dolores, and their infant daughter. Officer Driscoll remained with the police car and officers Crowley and McCormick crossed the street together. After ringing a doorbell they were admitted to the building by Barbara Washington, a cousin of the defendant, sixteen years of age.
All members of the Davis family were at home at the time the officers arrived. The defendant, hearing the bell and voices, looked out a window toward the street. He saw the policemen and the police car parked across the street. He recognized it as a squad car because of its long radio aerial and its peculiar type of bumper guards. He also noticed that one officer remained in the car. Defendant had been implicated in a series of robberies, and, fearing that the police had come to arrest him, he hid in a clothes closet off the living room of his apartment.
Barbara Washington, having admitted the officers, who stated they wanted to talk to Bernice Davis, called upstairs to Dolores and asked her if Bernice was in. Dolores made some response after being called a second time. Barbara told her there were some men to see her and she said, "OK," whereupon the officers went upstairs where they were admitted to the living room by Dolores Davis.
The officers, still believing that the person they wanted to question was a woman, asked Dolores if she were Bernice. Upon being advised that she was not Bernice, the officers asked her if a person by the name of Bernice lived there and she told them that no woman by that name resided at that address. She also made evasive answers about telephone calls. One of the officers began to look about, and, opening the closet door discovered the defendant in the closet partially clothed. He ordered the defendant to come out and clothe himself. Defendant stated that he was Dolores' "boy friend" and had stopped to see her for awhile. He denied knowledge of the phone call in question. Officer Crowley noticed a slip of paper near the telephone with the words "Steubenville, Ohio" on it. Apparently realizing that Steubenville was near Wierton, West Virginia, the officers told defendant and Dolores Davis that they would have to go to the police station for questioning.
Mrs. Davis had prepared to accompany the officers and was standing in the living room near the baby's crib with her back toward the men. She was conscious that some conversation was occurring between her husband and the officers but paid no attention to it and does not remember any of it. The defendant sat at one end of a couch, officer Crowley at the other end and officer McCormick stood near the door leading to the hallway. This was the only regular exit from the apartment. Defendant states that officer Crowley had his revolver drawn. At a time when officer Crowley turned to speak to McCormick, defendant suddenly reached into the corner beside the couch and picked up a fully loaded 38-calibre revolver with which he first shot and killed officer McCormick and then killed Crowley. Crowley wounded the defendant in the right knee after defendant had shot McCormick. All shots were fired after the defendant, upon drawing his gun, commanded the officers not to move. Defendant stated that he reached for the gun in question because he feared he was being arrested for the robberies he had committed. Defendant testified that McCormick fired the first shot; that he then shot McCormick, following which he emptied his revolver at Crowley. After being shot, Crowley attempted to grapple with the defendant and the defendant then struck Crowley over the head several times with his revolver until Crowley fell to the floor.
Davis, after securing a number of live cartridges for his gun, fled through a bathroom window at the rear of his apartment and thence by a succession of progressively lower roofs to the alley behind the building where he reloaded his weapon. He states that he did this because he feared the other officer, who had stayed with the car, might try to stop him. On Washington Boulevard the defendant, still armed, found one Lawrence Breckenridge seated in an automobile. Defendant forced his way into this car at gun point and commanded Breckenridge to drive. Defendant put Breckenridge out of his car at a point near Jackson Boulevard and a cross street. Defendant then drove to 1080 West Fourteenth Street where he parked the car in an alley at the rear of a building in which his mother-in-law lived on the second floor. He first went to the second-floor apartment, but looking out a little later he was police officers in the neighborhood, armed with various weapons, so he went up to the third-floor apartment of one Evelyn Tibbs, where he forced his way in and hid in a bedroom closet. There he was arrested by police officers at about 6:15 P.M. on the day of the shootings. At the time of his arrest defendant told arresting officers he had thrown his gun away, but it was found fully loaded in the closet where he had been hiding. Defendant had a number of live cartridges in his pockets at the time.
From the location of his arrest defendant was taken to the Maxwell Street police station and from there to the State's Attorney's office in the Criminal Courts Building, arriving at about 7:20 P.M. There he was given food and examined by two doctors. One of the doctors gave his wound first-aid attention and administered a tetanus shot. Both doctors found that defendant was in good physical condition other than for the wounded knee and that his head and body showed no marks of violence. Defendant's statement as to the shooting occurrences and the circumstances surrounding them was taken in the library of the Criminal Courts Building at 10:13 P.M. Questions were asked of the defendant by one assistant State's Attorney; the questions and defendant's answers were taken in shorthand and later transcribed. The statement as transcribed was then read to the defendant while he had a copy in his hand. Defendant later denied reading the statement, but it is undisputed that he turned the pages as the statement was read to him. Defendant signed this statement and initialed each page. Present at the time the statement was taken and signed were three civilian witnesses, including a colored minister, two assistant State's Attorneys, one colored and one white, a police officer and the shorthand reporter. The interrogation itself was of about one hour and fifteen minutes duration. Prior to the interrogation defendant was advised that the statement would be used against him and that he did not have to answer the questions unless he wanted to. According to at least one of the civilian witnesses, defendant stated that he desired to make the statement.
Counsel for defendant has argued six assignments of error. Only those argued will be considered, since those assigned but not argued are deemed to have been waived. People v. Smith, 404 Ill. 125.
Defendant contends that the homicides were justified because committed in defense of his habitation. The statutes of this State define justifiable homicide as follows: "Justifiable homicide is the killing of a human being in necessary self-defense, or in the defense of habitation, * * * against any person or persons who manifestly intend and endeavor, in a violent, riotous or tumultuous manner, to enter the habitation of another for the purpose of assaulting or offering personal violence to any person dwelling or being therein." (Ill. Rev. Stat. 1949, chap. 38, par. 366.) The record discloses that at the time of the shootings the police officers were already inside the dwelling of the defendant. Admission had been gained in an orderly and peaceable manner and without the slightest use of force or intimidation. Personal violence was not used nor was it threatened. It appears from the testimony of defendant's wife that just prior to the shooting some conversation was going on between the officers and her husband in the same room in which she stood but it was of such quiet and ordinary character that she does not remember what was said. She further testified that the conduct of the officers did not cause her to become excited and that the officers at no time threatened harm or injury.
Defendant, according to his own statements, both at the trial and on the date of his arrest, suddenly seized his revolver from beside the sofa and ordered the officers not to move. The shootings followed. Defendant says he seized his gun because he feared arrest and sought to prevent it. The record, we believe, falls far short of demonstrating ...