WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
LESLIE E. SALTER, Judge, presiding.
Calvin Donaldson, hereinafter referred to as the defendant, was one of three men jointly indicted for the murder of Ferdinand Wesley which occurred in the city of Chicago on April 13, 1954. His two alleged accomplices were apprehended and thereafter pleaded guilty to this charge. Donaldson submitted his cause to a jury trial which commenced in the criminal court of Cook County on January 10, 1955, and which resulted in a verdict finding the defendant guilty of murder and fixing his punishment at death. From the judgment and death sentence which then followed, writ of error has now been prosecuted to this court.
The record indicates that at approximately 9:25 P.M. on the evening of April 13, 1954, three men entered the Match Box Tavern located at 770 Milwaukee Avenue, Chicago, and announced that it was a "stick-up." Thereupon, one of the three men produced a gun, and during the events which followed, fired one shot which wounded the owner and bartender, Bernard Dorenfest, and killed Wesley.
The bartender, Dorenfest, was the only eyewitness who testified in this case. He stated that he was tending bar on the evening in question when the trio entered from Milwaukee Avenue and announced the robbery. The armed bandit, whom he identified as the defendant, then walked behind the bar and said "I am going to get myself a white * * * man to kill somebody over here." Thereupon, according to Dorenfest, the defendant and his accomplices ordered the tavern customers, approximately ten in number, to the rear of the building and then proceeded to open the cash register and take its contents. Once this had been accomplished, the bandits demanded to know where the "good whiskey" was, and after it was pointed out, the two unarmed members each left the tavern carrying a case of the liquor. At that point, said Dorenfest, the defendant walked towards him, aimed, and fired one shot in the direction of his head. Dorenfest put up his hands to protect himself, and as he did so, the bullet pierced his hand and shoulder, and struck Wesley, killing him almost instantly. On cross-examination, the bartender admitted that he was not certain which of the bandits first entered the tavern and produced the gun but was positive that Donaldson was present and did the shooting. He further stated that upon being released from the hospital following the robbery, he identified the two accomplices at a police "lineup" and also recognized Donaldson's picture from about a dozen that had been furnished him for that purpose. Dorenfest also admitted that the first time he had seen the defendant since the shooting was at the time of trial, but was somewhat evasive as to whether or not Donaldson had been pointed out to him in that instance.
John McNally, a Chicago police officer, testified that his department was notified by the New Orleans police department on June 30, 1954, that Donaldson was in their custody, and that he and another officer proceeded to New Orleans to pick up the prisoner. Upon arriving, they talked to the defendant but were informed that he did not wish to make any statements. However, according to McNally, on the return trip to Chicago, the defendant said: "I was in on the robbery when another man handed me a gun, the gun went off accidentally." This witness also stated that he was present when Donaldson was questioned concerning the crime and when Dorenfest identified the defendant's photograph.
Robert Garrou, another police officer, testified that he was on duty during the evening in question and about 9:30 P.M. received a call that there was a shooting at the Match Box Tavern. He immediately proceeded to the scene of the crime and found the bartender bleeding from his shoulder and hand. The deceased was lying face down upon the floor and there were three other people in the establishment at that time. During his testimony, Garrou was asked whether a photograph, marked as People's exhibit I, gave a true representation "of the appearance of the head of the man that you saw on the floor on April 13, 1954, in the tavern at 770 N. Milwaukee Avenue," to which he replied, "It does. It seems a little swollen up since then, though." Thereafter the exhibit was received in evidence.
The State then called Joseph Tournier, who testified that he was a shorthand reporter for the Cook County State's Attorney's office, that he was present at the detective bureau at 5:00 A.M. on the morning of July 4, 1954, when a Calvin Donelson was interrogated by assistant State's Attorney Ferlic, that he took and transcribed the conversation that there took place, that it was the same as was contained in a 57-page unsigned statement marked as People's exhibit 2, but that he did not know whether the man who answered the questions was the defendant nor would he recognize this man if he saw him again.
At the court's suggestion, John McNally was recalled to the stand to testify that the defendant was in fact the one who had been interrogated. He stated that he was present at the questioning and that the man who answered the questions was sitting in the court room, "the second man from the left." At that point, the typewritten statement was received in evidence over defendant's objection.
For the defense, Donaldson testified that his home was in New Orleans but that he had come to Chicago some years ago and had served a prison term at Joliet for armed robbery. He stated that he left Chicago to visit a brother in Nashville, Tennessee, on April 12, 1954, and arrived in Nashville on April 14. From there he later went to Cairo, Illinois, and then to New Orleans. Donaldson denied, however, that he took part in the robbery or that he had made the statements attributed to him and contained in People's exhibit 2.
Frank Ferlic, an assistant State's Attorney who was called as a rebuttal witness by the prosecution, stated that he was present at the instant interrogation and that the defendant was the same person who made the statements contained in People's exhibit 2.
As grounds for reversal, the defendant first contends that the trial court erred in admitting People's exhibit 1 because of its inflammatory character. He argues that the parties had already stipulated that if the chief pathologist for the Cook County coroner were called he would testify that he examined the body of one Ferdinand Wesley at the county morgue and that the cause of death was "a bullet wound of entrance in the left side of the face, 5 cm. from the midline at the level of the nasolobial fold, causing a perforation or fracture of the maxilla, first and second cervical vertebrae and laceration of the spinal cord," and for that reason, the photograph had no probative value but was used merely to arouse prejudicial emotion. With this we cannot agree. Here the exhibit was proper not only to give the jury a better understanding of the medical terminology but also to aid them in determining the manner in which the wound was inflicted. Donaldson, being 5 feet 8 inches tall, had contended that the shot was fired by a man at least 6 feet in height, and therefore, on cross-examination of Dorenfest, the defense attorney attempted to show certain discrepancies concerning the infliction of the fatal wound by questioning the witness about the relative positions of both himself and the decedent and about the path of the bullet itself. That this interrogation was somewhat successful is shown by the fact that the trial judge, in passing upon the exhibit's admissibility, commented: "As a matter of fact, counsel, your cross-examination even developed some inconsistency about the range of the bullet." Since much of this testimony was demonstrative and could not be completely expressed by the record, and since the trial judge was in a much better position to ascertain its impact than a court of review, this remark takes on added significance. Furthermore, since the medical testimony as to identity of the decedent and his cause of death was based solely upon an examination conducted at the morgue, and since the police officer who identified the photograph saw the body at the scene of the crime, the exhibit was proper to connect these two identities. It is our opinion that the trial court did not err in admitting the photograph in evidence.
The defendant also contends that prejudicial error resulted from the bringing of evidence as to his morals and other unrelated offenses into the record by means of exhibit and argument to the jury. People's exhibit 2 is a 57-page unsigned confession which allegedly covers, in great detail, the planning of the robbery in question, the names and addresses of the participants, the commission of the crime itself, defendant's flight to escape prosecution, and his subsequent arrest in New Orleans. In addition, it covers many facts concerning the defendant's personal life as well as his implication in other criminal acts. For example, defendant allegedly answered the following questions concerning a stop he made in Cairo, Illinois, before leaving for New Orleans:
"Q. Who did you see in Cairo?
Q. Is that his first name or last name?
Q. How long have you known ...