WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
WENDELL E. GREEN, Judge, presiding.
MR. JUSTICE KLINGBIEL DELIVERED THE OPINION OF THE COURT:
Plaintiff in error, Frank Jordan, 29 years of age, hereafter referred to as the defendant, was found guilty of manslaughter upon trial by a jury in the criminal court of Cook County. At the close of the People's evidence and again at the close of all the evidence motions by defendant to direct the jury to find him not guilty were overruled. After verdict, motions by defendant for a new trial and in arrest of judgment were likewise overruled and thereupon the defendant was sentenced to the penitentiary for a term of not less than one year nor more than three years. Defendant has sued out of this court a writ of error to the criminal court of Cook County for a review of his conviction and sentence.
Although defendant has assigned ten errors upon the record, he has confined his argument to but one, and that may be summarized as: The State did not prove defendant guilty beyond all reasonable doubt, by reason of which the trial court erred in not directing a verdict of not guilty, and that in such case it becomes the duty of this court to reverse the resulting judgment of conviction.
In criminal cases we have often said that it is our duty, where a verdict of guilty is returned by a jury or where a similar finding is made by a court where a jury has been waived, not only to carefully consider the evidence but to reverse the judgment if the evidence is not sufficient to remove all reasonable doubt of the defendant's guilt and is not sufficient to create an abiding conviction that he is guilty of the crime charged. (People v. Scott, 407 Ill. 301, 304.) In order to determine whether or not this contention is applicable to the facts in the instant case we must, of necessity, examine the evidence introduced upon the trial.
The material facts in evidence at the close of the People's case show that the defendant at about 11:30 on the night of June 15, 1952, left a tavern at 5905 West North Avenue in the city of Chicago; that he then walked west on the south side of North Avenue; that at 5917 West North Avenue there was a filling station then being attended by one Arthur Erickson, the deceased.
At this station there were four gasoline pumps that came right up flush with the sidewalk and directly south of the pumps, some forty or fifty feet, there was a small building used as the station office. When the defendant was approximately fifty feet east of the east pump and walking west, the deceased started to walk from the station office towards the pumps.
There were no eyewitnesses as to what actually happened when the two men met, and the only evidence in the record as to what actually occurred at that time and place appears in a written statement signed by defendant and introduced in evidence as part of the People's case and also in the testimony of the defendant after the close of the People's case.
In the written statement given to the police by the defendant, he stated, among other things, the following: "As I was walking by this gas station, I see this Art who I don't get along with, so I called him a jerk and an ____ and he says, `I'll show you who's an ____' so he ran after me swinging a sap and twirling it on a string. I ducked under it and hit him with my fist. He went down and I guess he must have hit his head and I stopped the first car and told them to call the police and an ambulance. The police came and I surrendered to them. I had had trouble with Arthur Erickson before about three weeks ago in a food shop * * *. From then on we didn't get along."
The evidence further shows that the deceased was found just inside the island or concrete base upon which the pumps were situated, with his left foot and part of his left leg up over the island or concrete base, his head was facing west and he was on his back. The nozzle of pump number six was on the ground. Erickson was removed to St. Ann's Hospital where shortly thereafter he died of the injuries received. There was sufficient proof to the effect that the deceased came to his death as a result of the injuries which he sustained when he fell to and upon the concrete driveway or curb at the filling station.
Immediately after the defendant realized that Erickson had been seriously hurt, defendant ran out to the street to hail a passing auto and one Margaret Kenney, a witness for the prosecution, who was driving east on North Avenue about to pass the gas station, stopped her car, whereupon defendant told her he had just struck a man and asked her to get in touch with the police or get somebody to help him. She testified defendant was excited and his main thought was to get help for the man that was lying there. She called the police and reported it as an automobile accident and later when she asked defendant whether he had run over the man he answered, "No, I hit him. He swung a gas nozzle at me and I hit him." She testified further that defendant did not say it was a flash light, and that defendant appeared to be sober, but agitated and excited; that he remained there until the police came, standing right there where the party that was injured was lying.
Edward Emond, another prosecution witness, testified that as the defendant was walking west on the sidewalk adjacent to the filling station Mr. Erickson was walking north towards the pumps.
Lawrence Keegan, a fourth year high school boy called by the prosecution, testified that he was a part-time helper at the filling station, having just gone off duty there and was sitting with the witness, Edward Emond, in a car across the street from the filling station, facing south; that after Erickson was on the concrete he went over there and sort of took charge of the station; that he noticed the nozzle of pump number six was on the ground it was crossed over the body by his (Erickson's) right hand, about six inches away; that he never at any time saw defendant step off the sidewalk; that he also saw a flash light there on the ground. It belonged to the gas station and that Erickson carried a sap or billy on him for his own protection; it wasn't on the ground. It was in his pocket.
Officer Schmitz, a witness for the prosecution, testified that when he asked defendant if he caused the injuries, still not sure in his mind whether it was an auto accident, the defendant said, "I hit him with my fist." The officer testified that when he and his associate officers arrived on the scene they did not at first see the defendant, but when they placed the stretcher in the patrol wagon defendant came around the side of it and was there when they placed the injured man into the ambulance; that defendant at no time made any attempt to escape and that he asked defendant to step into the patrol wagon which took the injured man to the hospital, and that he asked the defendant his name and the name of the injured man, which information the defendant furnished.
Officer Troogstad, a witness for the State, testified that in a conversation he had with the defendant in the emergency room at the hospital the defendant told him of the trouble he had with the deceased about two weeks before; that they called each other names and that the deceased started chasing defendant with a sap; that defendant hit him once and deceased went down and struck his head on the island. This ...