WRIT OF ERROR to the Circuit Court of Mason County; the Hon.
MAURICE E. BARNES, Judge, presiding.
MR. JUSTICE MAXWELL DELIVERED THE OPINION OF THE COURT:
The indictment against plaintiff in error, Merle Prohaska, consisted of four counts, in each of which, in varying language, it was alleged that plaintiff in error, Melvin Hodson and Thomas Skelly did, on April 6, 1947, at Havana, Mason County, kill and murder one John Barclay.
Plaintiff in error was tried jointly with his co-defendants, before a jury, and was found guilty of murder as charged in the indictment, and his punishment was fixed by the verdict at imprisonment in the penitentiary for the term of his natural life. A separate verdict was returned by the jury as to each of his co-defendants, with the same findings and the same punishment. A written motion for a new trial and an oral motion in arrest of judgment were each made in that order and were each overruled by the court. Judgment was entered by the court upon the verdict of the jury, and thereafter plaintiff in error was committed to the Illinois State Penitentiary where he is now incarcerated. He brings this writ of error to review the record of his conviction.
Plaintiff in error was tried on the theory of an accessory before the fact to murder, that he, being present, had advised or encouraged the perpetration of the crime charged; that he, together with Thomas Skelly and Melvin Hodson, conspired together to intimidate or murder one John Barclay, for which Melvin Hodson was to compensate plaintiff in error and Skelly.
The facts in this case have been fully set out in People v. Hodson, 406 Ill. 328, and People v. Skelly, 409 Ill. 613, and will not be repeated here.
Sixteen errors are relied upon for reversal. The first and third assignments of error, that the trial court erred in overruling plaintiff in error's motions for a directed verdict at the close of all of the evidence for the People and for a new trial, and in refusing to give the jury the offered instructions of the plaintiff in error, have not been argued and are waived. People v. Jones, 6 Ill.2d 252.
The second error assigned by the plaintiff in error is that the trial court erred in overruling his oral motion for arrest of judgment. There was no requirement by the court or request by the State's Attorney to have the motion reduced to writing or to have the grounds of the motion reduced to writing. The State now contends that since specifically assigned errors, if any, supporting plaintiff in error's oral motion in arrest of judgment were verbal and are not shown by the record, plaintiff in error's assignment of error upon the action of the court in overruling his oral motion in arrest of judgment presents nothing for review. In People v. Jankowski, 391 Ill. 298, relied upon by the State, it was held that since 1933 the requirement that motions for a new trial and in arrest of judgment be in writing is a mandatory one in criminal cases; that the legislature, by the 1933 amendment to section 17 of division XIII of the Criminal Code, intended to require defendants in criminal cases to apprise the trial court in writing of all grounds for a new trial or for arrest of judgment, and that failure to do so precludes assigning as error any point not so specified. However, in People v. Flynn, 8 Ill.2d 116, the decision on this point, made in the Jankowski case, was specifically overruled. This court, in deciding the Flynn case, held that the 1933 amendment to section 17 of division XIII of the Criminal Code is directory and not mandatory; that the party moving for a new trial and for judgment notwithstanding the verdict may be required by the court or the opposite party to file points in writing specifying the grounds for his motions, and that if the party moving for a new trial and for judgment notwithstanding the verdict submits verbal motions without stating in writing the grounds therefor and without objection, the requirement of such written statements are waived. If the motions have been submitted thus, without specifying the grounds therefor in writing, the party may avail himself of any cause for a new trial which may appear in the record, whether it be the admission or rejection of evidence, the giving or refusing of instructions, the lack of sufficient evidence or any other error occurring during the trial. The foregoing rules applied to motions for new trial and motions for judgment notwithstanding the verdict are also applied by this court to motions in arrest of judgment and when a motion in arrest of judgment does not specify the ground therefor, it will be presumed, on appeal, that every proper ground for arrest of judgment was presented to the trial court. People v. Goldberg, 287 Ill. 238.
Plaintiff in error contends that as he was tried as an accessory before the fact of murder he has a right to prove that under Illinois law the alleged murder of John Barclay was in reality self-defense by the defendant Thomas Skelly. Further, that under the evidence adduced and the law the killing of John Barclay by Thomas Skelly was self-defense; that therefore plaintiff in error could not be guilty of the crime of murder or accessory before the fact to murder. In People v. Skelly, 409 Ill. 613, we considered and weighed the evidence upon the same issue, that of self-defense as advanced by Thomas Skelly. It was concluded in that case that the jury was justified in rejecting it. The record before us in this case is identical with that of People v. Skelly. Plaintiff in error brings forth no new facts and makes substantially the same arguments as those advanced in the Skelly case. The issue of self-defense raised by defendant in this appeal is controlled by our decision in People v. Skelly. People v. Aversa, 393 Ill. 473; Larson v. Chicago City Bank and Trust Co. 381 Ill. 172.
There were introduced in evidence what purports to be four written confessions signed by the plaintiff in error, being Peoples' exhibits 51, 52, 53 and 54. These documents clearly admit the charges made in the indictments. But plaintiff in error, then a young man 19 years of age, insists that the purported confession of the 17th of April was induced by threats of the electric chair and promises that recommendation of leniency would be forthcoming at the trial; that his purported confessions of the 17th and 18th of April were not voluntary because dictated by the State's Attorney; that his purported confessions of the 17th and 18th of April were given for the sole purpose of procuring and guaranteeing the release from jail of his sweetheart or girlfriend, Henrietta Hodson, co-defendant Hodson's sister. Plaintiff in error contends that under the law of the State of Illinois the People must prove by a preponderance of the evidence that a confession is voluntary. He further submits that he signed Peoples' exhibits 51, 52, 53 and 54 involuntarily and under duress and promises which were made, one of which at least was kept, namely, that Henrietta Hodson would be freed.
The constitution of the State of Illinois provides that no one shall be required to give evidence against himself in a criminal case (article II, section 10). It also provides that no person shall be deprived of life, liberty or property without due process of law (article II, section 2). And likewise, the fourteenth amendment to the constitution of the United States provides that no State shall "deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Plaintiff in error argues that this being the law, the purported confessions as admitted against him at his trial were used against him in violation of his constitutional rights.
Confessions extorted by violence, brutality, promise or unlawful confinement for an unreasonable length of time are illegal and may not be received in evidence against the accused. A voluntary or freely-made confession of guilt is proper evidence of a high and convincing character. The question of whether an alleged confession was voluntarily made is initially one for the trial judge. People v. Scott, 401 Ill. 80; People v. Ardelean, 368 Ill. 274.) We have held that all of the witnesses to the confession or those taking part in obtaining it must be produced or their absence explained. The burden is upon the State to show the confession is voluntary.
In the instant case a hearing was held before the court out of the presence of the jury as to the admissibility of the purported confessions. Sheriff William K. Sheridan, Assistant State's Attorney Guy Williams, Rosalyn Heye, the stenographer, Deputy Sheriff Lauren Ollin, State's Attorney Lyle R. Wheeler, and Robert M. Walker and William Abernathie, investigators for the State Bureau of Investigation testified on behalf of the State. In addition to plaintiff in error, the court heard in his behalf the testimony of Henrietta Hodson, Melvin Hodson and Thomas Skelly.
The facts show that on April 17, 1947, plaintiff in error signed a confession, Peoples' exhibit 51, in the sheriff's office in Havana. Present on this occasion were Sheriff William K. Sheridan, State's Attorney Lyle K. Wheeler, William Abernathie and Robert Walker, investigators from the State Bureau of Investigation, and Rosalyn Heye, the stenographer. On the day following plaintiff in error's first confession, co-defendant Thomas Skelly executed a confession, People's exhibit 52, which was signed by plaintiff in error. Witnesses were Robert M. Walker and William Abernathie. Later the same day Skelly made another written confession, People's exhibit 53, in substantially the same form as the one made previously, which was also signed by plaintiff in error. This instrument was executed by Robert M. Walker, William Abernathie and William K. Sheridan, as witnesses. Skelly made still another written statement the same day, People's exhibit 54, which was also signed by plaintiff in error. In addition to plaintiff in error and Skelly, Deputy Sheriff Lauren Ollin, Sheriff William K. Sheridan, Robert M. Walker, and William Abernathie were present. After the last two statements had been made by Skelly and signed also by plaintiff in error, Hodson, a co-defendant, was brought to the ...