WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
HENRY L. BURMAN, Judge, presiding.
MR. JUSTICE MAXWELL DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 21, 1955.
Plaintiff in error, hereinafter designated defendant, was convicted by a jury of the murder of one Marvin Dudley on April 16, 1953, in Cook County, and was sentenced to 99 years in the penitentiary. This writ of error is for the purpose of reviewing that conviction and sentence.
The defendant complains that the State did not make out a prima facie case; that the motion of the defendant for a directed verdict should have been allowed; that the manifest weight of the evidence was against the verdict and judgment; that the court erred in allowing a motion of the State to make Josephine Williams the court's witness over objections of defendant; that the court erred in giving unnecessarily repetitious and abstract instructions for the State, and that the court erroneously allowed into evidence, over objection duly made, testimony as to certain discharged pistol shells.
The evidence on behalf of the People consisted of the testimony of Erskin J. Dudley, brother of the deceased, police officers John Deady and Henry Sprengel, James Brenker and Vassie Lee, as well as a stipulation of the testimony had and taken at the inquest held over the body of Marvin Dudley and a stipulation that the coroner's physician would testify that the deceased, Marvin Dudley, came to his death as a result of a bullet wound in the chest and also a stipulation of testimony of James Brenker if called as a witness in rebuttal.
The defendant's evidence consisted of the testimony of the defendant and, in addition, several witnesses who testified to the good reputation of the defendant for being a peaceable and law-abiding citizen.
Josephine Williams, a principal witness, was a witness on behalf of the People, and then was called as the court's witness. Thereafter she was called as witness by the defendant, and during such examination was again made the court's witness.
There were two eyewitnesses to the tragedy: one, Josephine Williams, was a married woman in the process of securing a divorce; the other was the defendant, James Bishop Banks. He likewise was married, the father of two children but separated from his wife. Banks testified he divorced his wife some time in April, 1953, in the city of Chicago. Defendant Banks had known Mrs. Williams since 1942. Although both Mrs. Williams and Banks were already married, he and she had become engaged to be married. He had given her a ring, the wedding was scheduled for June, 1953. On April 12, 1953, four days before the fatal shooting, Banks gave Mrs. Williams money to retain a lawyer to secure her divorce.
Marvin Dudley, the deceased, became acquainted with Josephine Williams in 1951. Banks testified he first met Dudley in the spring of 1951 when Josephine Williams introduced them. This introduction took place in her home. They spent about five minutes together at that time. The next time Banks met Dudley was about three to four months later and again the meeting took place at Mrs. Williams's home. Banks and a friend were in Mrs. Williams's apartment awaiting Mrs. Williams's return from church. When she arrived Dudley and his brother were with her. Some conversation was had between Banks and Dudley concerning an automobile. Banks testified that Dudley had a pistol and hit him once in the head. Dudley and his brother stayed for about ten minutes and left Mrs. Williams's apartment leaving Mrs. Williams and Banks there. The next meeting between Banks and Dudley took place in 1953, three days prior to April 16. Again the meeting took place in Josephine Williams's room, a oneroom bedroom apartment on the second floor of a four-story flat-type building in the city of Chicago. When Dudley arrived on this occasion, Banks was in Mrs. Williams's room and she was down the hallway in the bathroom. Dudley rang the bell and Banks let him in. Dudley and Banks waited and Mrs. Williams returned. A general conversation ensued between Mrs. Williams and Dudley in Banks's presence. Dudley made a remark that Banks wasn't good enough for Mrs. Williams and that there wasn't going to be any wedding. Banks testified he did not reply. Mrs. Williams testified that on this occasion Dudley stayed for about twenty-five minutes. She asked him to leave and shortly thereafter he did.
On April 15, 1955, Dudley phoned Josephine Williams. She was not in and he left word for her to phone him. She called him the next day. He told her he wanted to see her; that he had something to tell her. Dudley arrived at her room about 1:00 P.M. on the afternoon of April 16. For the most part he and she stayed in her bedroom until the time of his death. During his stay each left the room separately at various times, he to move his car and go to the bathroom; she to make a phone call to her employer advising she would not report for work that evening and also to go to the bathroom.
At approximately 8:10 P.M. on the evening of April 16, Banks arrived at the Williams flat and gained entrance to the building. Upon arriving at Mrs. Williams's door, he testified: "I found it was unlocked. I opened the door. I walked in. Much to my surprise, I saw a man on the bed. He grabbed a gun. Marvin rushed toward me and shot. I ducked, run my hand in my coat pocket and I started shooting. I was just shooting, no aim, no nothing, just scared and shooting. It was an automatic and it kept shooting in all directions."
The shots attracted other occupants of the building to the Williams's bedroom. The first to arrive was James Brenker, uncle of Josephine Williams. He testified that his room was adjacent to that of Josephine Williams; at about 8:00 P.M. on April 16 he heard some shots. He left his room and ran into the hallway. When he got to the door from the hallway to Josephine Williams's room, defendant was standing in the doorway with a pistol in his hand pointing in the general direction of a man lying on the floor in the bedroom. Brenker testified he grabbed the defendant, Banks, and said to him, "Man, you done killed this man in my house. What in the world am I going to do? Get out of here." Banks made no reply but turned and ran out of the building. In his flight his gun fell out of his pocket and was lost. Banks got a ride with a truck driver going to St. Louis. In St. Louis he worked at two jobs under the name of Jerry Barker. He then went to Ohio where he was subsequently arrested and extradited.
There is no dispute that the defendant killed Marvin Dudley. The only dispute is as to whether the homicide was done with malice aforethought, either express or implied or whether it was committed in self-defense.
As indicated by the evidence, the claim of the State is that the defendant, Banks, on discovering Marvin Dudley naked in bed in the apartment of his fiance, murdered him. The defendant's theory is that Banks was carrying a gun for protection because he was in fear of his life of Dudley; that when in Josephine Williams's apartment, Dudley saw Banks open the door, Dudley grabbed his gun and opened fire on Banks, Banks fearing for his life shot and killed Dudley in self-defense.
Mrs. Williams, an eye witness and engaged to the defendant, was called first by the State and then as the court's witness. She testified that when Dudley arrived at her apartment on April 16 he had a gun and that when he undressed and got into bed he put the gun on a dresser close to the bed. Further she testified that on the night of April 16 when the defendant, Banks, opened the bedroom door and came in the room far enough to be seen, the deceased said "wait a minute," got out of bed, got the gun off the dresser, went toward the door and fired the first shot. When she heard the shots she started screaming and tried to push the door closed. Neither before nor after the shots did she or Dudley talk to Banks. On cross-examination by the State she was asked:
Q. "Did you ever tell anyone before this date that Dudley went to the door and ...