WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
FRANK M. PADDEN, and the Hon. THOMAS E. KLUCZYNSKI, Judges,
Rehearing denied September 10, 1952.
Plaintiffs in error, LeRoy Lindsay, Earlie Burton and Emanuel Scott, together with one James Pickett and Emil Washington, were jointly indicted for the murder of William Murphy, a police officer of the city of Chicago. Emil Washington died before trial. Lindsay, Burton, Scott and Pickett were jointly tried at the April, 1951, term of the criminal court of Cook County, were found guilty, and Lindsay, Burton and Scott were each sentenced to death in the electric chair and Pickett was sentenced to fourteen years' imprisonment. The three first named come here from the criminal court of Cook County on writ of error to review the verdict of the jury finding the defendants guilty of murder and fixing their punishment at death, and the judgment and sentence to death by electrocution, and also to review the overruling of the petition to expunge the judgment and sentence filed on behalf of defendant Emanuel Scott. The cases have been consolidated for hearing by this court.
The composite factual picture presented at the trial was the result of direct evidence from eyewitnesses as well as admissions contained in confessions made by each defendant separately. The record discloses very minor conflicts in the testimony adduced on behalf of the State and defense with reference to the events that led up to the homicide in question.
Shortly before midnight on April 24, 1950, a bartender and two customers were in a tavern and liquor store at 455 West Fifty-ninth Street in Chicago. A man walked in, ordered some beer and immediately walked out. Shortly thereafter, this man returned with three others and announced that it was "a stickup." All four men were armed. Two of them took the bartender and the two customers to the rear of the tavern while the man who had originally come in alone went behind the bar to the cash register and the fourth stood at the door of the tavern. The man behind the bar had trouble with the cash register and the bartender was called back to open it. The men demanded a bottle of Scotch and as the bartender was reaching up to get it William Murphy, a policeman in uniform, walked in on the scene. As Murphy reached for his gun, the man at the door grabbed him, the man behind the bar started shooting and jumped over the bar towards the policeman. The man at the door also fired. One of the men at the back ran towards the front, shooting. All four men ran out. Murphy lay on the floor dead.
The four men were later identified by the bartender as Lindsay, Burton, Scott and Washington. Washington was the man who first came in alone and was the one who rifled the cash register. Scott was identified as being the man at the front door, and Lindsay and Burton as the men who took the bartender and the customers to the rear, and Lindsay as the one who moved to the front when the firing started. One of the patrons said he did not see the faces of any of the bandits, while the other patron saw the faces of only two of the four and positively identified Lindsay and Burton.
There were a total of eight bullet wounds in Murphy's body and any one of six of them would have been sufficient to have caused death.
Three bullets were removed from the body of the officer, three fell from underneath his undershirt when it was removed from his body and five spent bullets were recovered from the immediate vicinity, all of which were introduced in evidence. The police recovered three pistols from the Jackson Park Lagoon after a conversation with the defendant Lindsay shortly after his arrest. Ballistic tests indicated that of the three bullets recovered from the deceased's body, one was fired from a .38 caliber gun and the two others were fired from a Spanish model gun which Lindsay said in his statement he held.
In addition to the foregoing direct evidence, the People introduced six statements made by the various defendants, after a preliminary hearing as to their voluntary character had been conducted by the court outside of the presence of the jury. The first statement in point of time was made at 6:45 A.M. on April 26, 1950, by Lindsay alone. This statement was a factual recital which implicated Scott, Emil Washington, James Pickett and another fellow known as "Ted," as well as Lindsay. The second statement in point of time was given by Lindsay at 9:30 A.M. on April 26, 1950, on the Sixty-third Street Bridge over the Jackson Park Lagoon, while none of the other defendants were present. This statement pertained to the disposition of guns in the lagoon by Lindsay and implicated another fellow by the name of "Ted." The court before admitting these first two statements instructed the jurors not to regard any statements, facts or other matters related therein as against the defendants Pickett, Scott and Burton.
The next statement in point of time was given jointly by Pickett, Scott and Lindsay at 12:50 P.M. on April 26, 1950. The defendant Burton was not present. The court instructed the jurors before admitting this statement in evidence to disregard any facts contained therein that involved defendant Burton. The statement was a further factual recital of the events of the night of the homicide implicating by name all of the defendants herein. The next statement was that of Washington taken in the hospital at 3:20 P.M. on April 26, 1950, the defendants Scott, Pickett and Lindsay being present. The defendants also participated in answering questions at that time. The court, before admitting this statement in evidence, instructed the jurors to disregard any reference to the defendant Burton. The fifth statement in point of time was a joint statement of Burton, Pickett, Scott and Lindsay, taken at 12:40 A.M. April 27, 1950. None of the first five statements were signed. The last statement was that of Washington taken at 12:00 noon, April 27, 1950, at the Bridewell Hospital, with Burton, Pickett, Scott and Lindsay present and participating in the questioning and answers. This last statement was signed by Burton, Pickett, Scott, Lindsay and Washington.
All of these statements are in substance identical. In each of them it is admitted that the five men got together in an automobile earlier in the evening and secured guns from Pickett's house. After having visited several other places and having ridden around for awhile, Pickett had an argument with Washington and left the group before they went to the tavern where the homicide occurred. Washington entered the tavern first and came out saying that there were only two customers inside and that the others should come in. All were armed. Lindsay and Burton took the customers and the bartender to the rear. Scott stood at the door while Washington went behind the bar to the cash register. Thereafter a policeman walked in and Washington leaped over the bar and grappled with him. Shots were fired and thereafter the four men fled from the tavern. Washington and Scott, both wounded in the scuffle, were dropped off at Washington's house. Lindsay and Burton drove to Jackson Park where three guns were thrown into the lagoon.
Scott took the stand in his own defense and admitted being at the scene of the shooting, armed at the time, and in the company of the other men for some time before the shooting. However, his testimony was to the effect that he did not know there was a holdup planned, that his companions were taking him to a party in Morgan Park. Scott contends that he was given a gun and, when they arrived at the store where the homicide occurred, he was told that he had to participate in the robbery as a lookout guard at the entrance of the store. Shortly after Scott took the stand and started his testimony, a motion was made on behalf of the other defendants that either a mistrial be declared or that they be severed from the case because of surprise and testimony adverse to the interests of the other defendants. These motions were denied, but the court did instruct the defendant Scott and his counsel not to mention the names of the other defendants, which instruction was thereafter strictly obeyed.
Lindsay also testified in his own defense and admitted the truth of his original confession or admission. He admitted taking part in the armed robbery and admitted firing a shot in the tavern. However, he denied that the shot was fired at the policeman and said he shot at one of the other men because he was angry at the other man. He also admitted throwing the guns in the lagoon. Burton's defense consisted solely of the testimony of one character witness who was ...