WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
ARTHUR J. MURPHY, Judge, presiding.
MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:
After a jury trial in the criminal court of Cook County, the defendant, Leroy Jackson, was convicted of murder and his punishment was fixed at death. Execution has been stayed pending writ of error proceedings in this court.
As grounds for reversal, it is contended that the proof is insufficient to support the verdict and that prejudicial error intervened at the trial.
The prosecution's case was based in large part upon a 23-page written confession elicited from the defendant. Prior to trial, the defendant sought to have this statement suppressed, asserting that it was procured by force and abuse. After a lengthy hearing, the trial court denied his motion, and error is assigned on this ruling.
At the hearing on the motion to suppress, the defendant testified that he received beatings and other abuse from about every law officer involved. However, he presented no witness but himself in support of the charge, there was no medical or photographic corroboration, and he had told no one, including a preliminary hearing magistrate, of any such misconduct. In addition, he was flatly disputed by thirteen witnesses who had been with him at various times between his arrest and the signing of the confession.
The statement was taken by a court reporter in the presence of an assistant State's Attorney (who did the interrogating), police officers Henry Jurgensen and Antone Prunckle, Dorothy Nichols and Ida Mae Wilson. The two women were prosecution witnesses, who subsequently testified at the trial. After transcription, the statement was signed in the presence of the court reporter, the assistant State's Attorney, the two ladies, officer Jurgensen, and a homicide detective named William McCarthy. McCarthy was not present at the questioning; and Prunckle, who was, did not witness the later signing. All of the foregoing persons testified, and each in some material respect refuted the defendant's claims.
On this record, the trial judge did not err in refusing to suppress the statement. (People v. Gavurnik, 2 Ill.2d 190.) Significantly, the defendant did not see fit before the jury to challenge the voluntary character of the confession, and it was admitted in evidence without objection.
Briefly, the confession establishes the following: At around 2:10 A.M. on April 9, 1954, the defendant burglarized the apartment of Mrs. Dorothy Nichols. He found little to take, but did leave with a small gun from Mrs. Nichols' purse. However, he later concluded the gun "wasn't real," stating "I have never seen one like it before in my life." And finding the gun would not work, he returned to the Nichols apartment, where he found a paring or potato knife. He took this knife along for use in another burglary. The defendant then walked to where the apartment of Louise Jackson was located, a distance of two blocks. (Although they bore the same family name, the defendant and Louise Jackson were not related.) He climbed a fire escape to the third floor, entered a window, found Louise Jackson in bed, and told her it was a "stick-up." And in his own words: "She gave me a struggle so I stabbed her and run out the door."
There was substantial corroboration of the facts related in the confession. Mrs. Nichols testified that the defendant admitted to her he had taken the knife during the burglary of her apartment and that he used it to stab the decedent. Three witnesses described finding the decedent, naked and bleeding from the breast, on the stairs in her apartment building. Three witnesses described her ransacked apartment. The two arresting officers testified that they apprehended the defendant on a Chicago bus, where he reached for a gun just before being taken. Eight witnesses testified to oral admissions of the defendant to the effect that he had stabbed the decedent with a knife. A pathologist's finding that the decedent died of a knife wound in the chest was stipulated, and her brother was called regarding his identification of her body.
Exhibits admitted were the written confession, the knife, the Nichols gun, a photograph of the decedent, two photographs of portions of her apartment, and the gun the defendant had when arrested. The photograph of the decedent was indorsed by the defendant "this is the lady I stab" and signed by him. One of the room pictures was indorsed "this is the window I came in," and the other "this is the door I left by." Both were likewise signed by the defendant.
The defendant did not take the stand or adduce any evidence on his own behalf. The foregoing evidence, therefore, stands uncontradicted, and is sufficient to prove guilt beyond all reasonable doubt.
While a claim for outright reversal must be rejected, we are of the opinion that justice does require a remandment for a new trial. This follows from the fact that there were admitted in evidence certain hearsay statements attributed to the decedent and a photograph of the decedent taken after the autopsy. Under the circumstances, both matters were inadmissible and very prejudicial. It must be remembered that the jury in this case not only determined the question of guilt but also fixed the punishment itself. "The legislature has seen fit by statute to clothe juries with a wide discretion in determining the punishment to be suffered by one convicted of murder, varying from death, or imprisonment for his natural life, to a term of not less than fourteen years. This court has held that when one is tried for murder he has a right to stand before a jury unprejudiced by incompetent, irrelevant evidence and appeal to them to spare his life." People v. Smith, 413 Ill. 218, 222.
We discuss initially the hearsay evidence. About an hour after the stabbing, the decedent was discovered, lying on the stairs leading to her apartment, by two friends who were also occupants of the building. Over objection, these witnesses, Lily Curry and Mary Mason, were permitted to tell the jury (in the words of Mary Mason) the following: "She told me that a little, short, skinny nigger * * * broke in on her. She said `He stabbed me with this knife.' She said `He went all the way, I pulled it out myself.' * * * She said he then ransacked her apartment, in all her drawers and in her trunk. I helped her into her apartment with Clyde Ewing assisting me. * ...