WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
CHARLES S. DOUGHERTY, Judge, presiding.
MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 15, 1954.
The plaintiff in error, Dorothy Horton, hereinafter referred to as the defendant, was indicted in the criminal court of Cook County for the murder of Samuel Dillon. Upon trial the jury found the defendant guilty and fixed her punishment at twenty years in the penitentiary. Judgment was entered on the verdict. Motions for a new trial and in arrest of judgment were overruled, and the defendant prosecutes a writ of error to this court.
The defendant contends that the judgment should be reversed for the following reasons: (1) the court erred in denying a motion of the defendant to direct a verdict in her favor at the close of the State's case; (2) the guilt of the defendant was not proved beyond a reasonable doubt; (3) the verdict of the jury is against the law and the evidence; (4) the court erred in giving the jury the instructions offered by the State; and (5) the court erred in refusing to give to the jury an instruction offered by the defendant.
The defendant admits the fatal shooting of Samuel Dillon on the evening of July 18, 1952, but claims she acted in self-defense.
The pathologist who performed the autopsy on the deceased the day following the shooting testified that he came to his death from bullet wounds of the chest and abdomen. He was struck by three bullets, each of which entered from the back and went through his body.
The evidence disclosed that Dillon was twenty-nine years of age, five feet seven inches tall and weighed 175 pounds. The defendant was twenty-two years old, short of stature and weighed 110 pounds. Although married and the mother of two children, she was not living with her husband and had been going out with Dillon. She said, however, that she had been trying to quit him since January, 1952, but had gone out with him since that time and while in Mississippi during May, 1952, had written him.
Dillon came to the apartment of the defendant at around eight o'clock in the evening, after being told by the defendant previously on the phone not to come, according to the defendant's testimony. The apartment in which the defendant lived consisted of one bedroom and a kitchen, which she shared with Golden Brown, the owner of the gun used in the shooting. It was a part of a six-room flat located on the third floor of the apartment building. The bedroom was about twelve by fourteen feet in dimensions. Its only door was on the north side and opened into a hallway. This hallway ran the length of the floor. The stairway leading downstairs was at the east end of the hall, or to the right as one emerged from the bedroom. The door to the stairway was about fifteen feet from the bedroom door. The kitchen, situated at the west end of the hall, was just west of the bedroom.
A written statement of the defendant was taken at the police station the night of the shooting and offered in evidence by the prosecution, the defense making no objection that it was not voluntarily given. In this statement the defendant relates that Dillon walked into her bedroom and started an argument, accusing her of going out with somebody else. She said she denied this and that he called her a liar and began cursing her. She ran to the kitchen table and got a butcher knife. They struggled, and the knife dropped to the floor. She then broke loose from him and got a gun from the dresser in the bedroom, pointed it at him and told him to get out. She said he replied, "I am not going to get out. Go ahead and kill me." She then said, "So I shot him." She stated further that he had a stick in his hand at the time, a stick which she had used to prop a window open and which he had gotten before they began fighting. She also said he tried to push her out of the window while they were fighting. At the time she pointed the gun at him and told him to get out he was standing about three feet away. When asked in the statement if he moved in any direction after he saw the gun, she answered, "No, I guess he didn't move. He just said `I am not going to go out. Go ahead and kill me.'" When asked who was there at the time of the shooting, she said "Just Sam and I."
At the trial, the defendant testified that Dillon used abusive language toward her when he came into the room and threatened to kill her if she did not tell him the truth. She said he beat her across the shoulders with a stick and tried to push her out the window. She stated she then broke loose from him and got a butcher knife from the kitchen, Dillon not following her into the kitchen. When she came back to the bedroom, he took the knife away from her and then called Ronald Brooks into the room. Brooks was another resident of the apartment building. As he was questioning Brooks and had his back turned to her, she got the gun out of the dresser drawer. She testified he then whirled around toward her with the stick and the knife in his hand and again told her he was going to kill her if she did not tell him the truth. He advanced toward her, and, when he almost reached her, she shot. She fired two other shots, and, according to her testimony, all of them were fired while she was in the bedroom.
Ronald Brooks, who testified for the defense, said Dillon called him into the room just before the shooting took place. He said the deceased asked him if anybody had been coming up to see the defendant and that he told him there had not. Dillon began cursing the defendant, according to Brooks, saying, "Before I leave from here, I will know what I want to know if I have to beat you to death." Brooks, who testified "I seen he was drinking," then began backing out of the room, and Dillon started toward him. At this point the defendant made a move to get the gun, and Dillon turned toward her. Brooks stated he saw Dillon then walk toward the defendant, with the knife and stick in his hand, and after backing out of the room and into the bathroom, which was the next room down the hall on the east, he heard the three shots fired. The witness stated further that he then saw Dillon run by him and go down the stairs. Two witnesses, called by the State in rebuttal, testified that Brooks's reputation for truth and veracity was bad and that they would not believe him under oath.
Police officer Walter Johnston testified that when he arrived on the scene he found Dillon lying on the floor of a drugstore, located in a building near the apartment building. Dillon was still alive and able to tell him by whom he was shot and where she could be found. He sent officer Patrick Gleason to the address given by Dillon. Officer Gleason brought the defendant back and gave the gun to officer Johnston. Officer Johnston stated he removed six shells from the gun, a .38 caliber Smith & Wesson revolver, three of which were empty shell casings. He said he did not notice any odor of alcohol or intoxicating beverage on the deceased.
Officer Gleason testified that he went to the defendant's apartment to pick her up. He said she told him that Dillon and she had been scuffling in the kitchen, he with a stick and she with a butcher knife, and that she went into the bedroom to get the gun. The witness said the defendant told him further that Dillon followed her into the bedroom. She told Dillon that if he kept bothering her she was going to shoot him, and with that she started to shoot. The officer testified that the defendant stated that when she began to shoot, Dillon went out the door of the bedroom into the hallway and down the stairs. Officer Gleason checked the apartment for bullet holes. He said there were two holes in the north wall of the hall about waist high, and one other in the stairway going downstairs.
Officer John Nolan also testified regarding the location of the bullet holes. He said that there were none in the bedroom itself and corroborated officer Gleason's testimony relative to the location of the two holes in the hall and the one hole down the stairway. The hole in the wall of the stairway, he testified, was in the neighborhood of twenty to twenty-one feet from the other two holes in the hall, and the angle of the bullet as it made this hole was at a slant from the southwest, where the doorway leading to the hall was located. The officer said he observed no bruise marks on the defendant's face, arms, or ...