WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
DANIEL A. COVELLI, Judge, presiding.
MR. JUSTICE DAILY DELIVERED THE OPINION OF THE COURT:
As a result of the slaying of one Florence Lavora in a Chicago tavern during the morning of December 22, 1951, Henry Lion, hereinafter referred to as defendant, was indicted for murder, and at the jury trial which followed in the criminal court of Cook County, a verdict was returned finding him guilty of the crime charged and fixing his punishment at life imprisonment. From the judgment and sentence thereon, the writ of error was prosecuted.
The record discloses that although the deceased was a married woman, she and the defendant were quite friendly and had been in the habit of frequenting neighborhood taverns together since 1946. Lion, a retired police officer, was also married during the first few years of this acquaintance, but separated from his wife in 1950. Thereafter, he continued to visit the deceased at her home, often giving her money and presents, and enjoyed an amicable relationship with both her father and her husband. After finishing work on the evening of December 21, 1951, defendant stopped at the decedent's residence at about 5:30 P.M., and after talking with Mrs. Lavora and her husband for a few minutes, proceeded to a tavern located at 2604 South Kedzie Avenue in Chicago. At approximately 7 P.M. of the same evening, the decedent entered the tavern and joined defendant at the bar. The couple continued to drink together until shortly before 2 A.M., at which time the defendant left and the tavern was closed. Mrs. Lavora and some other customers remained in the tavern, however, and at about 3:30 A.M., defendant returned and knocked on the front door for admittance, whereupon Mrs. Lavora went to the door and opened it. At that point, a struggle took place between Mrs. Lavora and the defendant which resulted in her being fatally shot by the defendant's service revolver. A few minutes later the police arrived and defendant was thereafter taken, first to the Bridewell Hospital, and then to the State's Attorney's office for questioning.
The only real disputes as to the facts of this case are concerned with prior threats allegedly made by defendant against the decedent and with the details of the shooting itself. Gloria Ackermann, a sister of the deceased, testified that in May, 1951, she was listening to a heated argument between defendant and Florence Lavora when she heard her sister scream "Hank, put that gun down. What are you doing, you crazy fool? Dawnie, Dawnie, come here, look what Henry is trying to do to your Mommie." This witness explained that Dawnie was the decedent's eight-year-old daughter.
Another sister, Ruth Notarus, testified that Florence was visiting her in the Notarus home in July, 1951, when the defendant came to the door and demanded that Florence leave with him. According to this witness, Florence not only refused to go, but also told him that she was through with him and did not want to see him again, whereupon defendant drew a gun and fired two shots in Florence's direction. This witness also told of another instance in which defendant attempted to shoot the decedent because she would not accompany him.
As to the slaying itself, Erwin Smrt, the tavern owner, described how he arrived at his place of business at about 10 P.M. and noticed defendant and Mrs. Lavora sitting together at the bar. Thereafter, during the course of the evening, Smrt served them each drinks and observed defendant leaving the tavern on several occasions, but stated that he at no time noticed anything unusual about the defendant's speech, walk, or physical condition. According to Smrt, defendant left the tavern for the last time at approximately 1:30 A.M., and about 2 A.M. the tavern doors were locked for the night, at which time there were several customers, including the decedent, still in the premises. At about 3:30 A.M., continued Smrt, he heard a knock at the front door and observed Mrs. Lavora walk to the door and admit the defendant. As the latter stepped inside, he pulled a shiny object from his right coat pocket and said: "You had this coming for some time; you asked for it." The decedent grabbed the defendant, shots were fired, and both fell to the floor.
Marie Smrt, the tavern owner's wife, testified that she was also in the tavern during the evening in question and was seated some seven feet from defendant and Florence Lavora, but did not overhear any argument or loud talk between them nor observe anything unusual in the defendant's walk or physical condition. According to this witness, at about 3:30 A.M. Florence Lavora was putting on her coat in preparation to leave when she suddenly placed the coat on a table and walked towards the front. The witness observed at this time that the decedent's gloves, purse, and boots were also on the table. As Florence Lavora opened the door, defendant walked in and the struggle and shooting commenced immediately.
This testimony was substantiated, at least in part, by the other customers who were in the tavern at the time of the shooting. Morris Ginsberg stated that at about 3:30 A.M. he heard a knock at the door and the subsequent firing. Henry Gerzan testified that when Florence Lavora opened the door, the defendant walked in and the struggle followed.
Gerald Brown, a police officer, described how he discovered the gun at the scene of the shooting and found Florence Lavora and defendant lying side by side upon the floor. Another police officer, Roy Loavis, testified that when defendant was questioned at the tavern, he stuttered and hesitated when he spoke and had a strong odor of liquor upon his breath. Miles Brouk, a third policeman, confirmed that there was an alcoholic odor on defendant's breath and that he "stuttered and fumbled for words." This officer also identified two statements which had been made by defendant on the day of the shooting and which were introduced into evidence as People's exhibits 6 and 7. In the latter exhibit, defendant stated that on the evening in question, Florence had his service revolver in her possession; that he had given the gun to her because he didn't want it near him; that she was picking on him at the tavern; that she then threatened to kill him, and that he thereafter blacked-out from a heart attack and did not regain his senses until he awoke in the hospital. People's exhibit 6, however, set forth statements to the effect that defendant gave his revolver to Florence because she was afraid of prowlers; that on the morning in question she threatened to kill him with the gun; that he then left the tavern and tried to get a cab but was unsuccessful; that he got cold, walked back to the tavern, and told Florence his heart was bothering him, and that then his black-out occurred.
In the testimony given in his own defense, defendant admitted that People's exhibits 6 and 7 were true but denied that he had ever threatened the decedent or had any motive or intention to harm her. According to his account, he met Florence in the tavern at about 7 P.M. and they drank together during the evening of December 21. Although he drank nothing but beer, he became nauseated and left the tavern on several occasions for coffee and fresh air, returning the last time just prior to the shooting. Even though he described his condition as "drunk and intoxicated," he did recall that as he stepped into the tavern on the last occasion, Florence was standing in front of him with a gun in her hand. The defendant said he grabbed for the gun, heard one shot, and then passed out.
In rebuttal, the State was allowed to introduce the testimony of Ruth Lera, a niece of the deceased, who described how her aunt, while partially dressed, had come to the witness' apartment on November 18, 1951, to avoid the defendant, how defendant followed her to the house, and how the police were called in order to remove him. On this occasion, she stated, defendant threatened to kill Florence if she pressed charges against him.
As grounds for reversal of his conviction, defendant now contends: (1) that he was so intoxicated at the time of the shooting he could not have had the malice necessary for the crime of murder; (2) that the decedent's death was the result of an accident; (3) that prejudicial remarks were made by the prosecuting attorney, and (4) that the trial court erred both in admitting evidence of prior threats, and in restricting defendant's cross-examination.
It is the rule in this State that voluntary drunkenness is no excuse for the perpetration of a criminal act, (Ill. Rev. Stat. 1955, chap. 38, par. 599; People v. Klemann, 383 Ill. 236,) and that it may be used to negative the essential elements of intent and malice only where the intoxication is so extreme as to entirely suspend the power of reason. (People v. Minzer, 358 Ill. 345; People v. Cochran, 313 Ill. 508; People v. Brislane, 295 Ill. 241; 21 I.L.P. Homicide, sec. 17.) Merely being "drunk" or "intoxicated" is no defense, even though the condition may have lasted for several days. (People v. Kadlecek, 391 Ill. 470.) Here, defendant worked until 4 P.M. of the day in question and commenced drinking sometime prior to 7 P.M., the time that the decedent entered the tavern. Thereafter, he drank only beer, leaving the premises on at last three occasions for either coffee or fresh air. Although his movements were observed by both Erwin and Marie Smrt, neither noticed anything unusual about the defendant's speech, walk, or physical condition. Indeed the defendant himself admitted that he remembers leaving the tavern at about 9 P.M. for five or ten minutes; he remembers leaving a second time for a cup of coffee and returning around 11:30 P.M.; he also recalls that the decedent had over 20 drinks of whiskey before midnight; that she started picking on him about 2 A.M.; that when he returned to the tavern for the last time, Florence was standing at the door with a gun in her hand, and that he grabbed for the gun and heard one shot fired. On the ...