WRIT OF ERROR to the Circuit Court of Macon County; the Hon.
MARTIN E. MORTHLAND, Judge, presiding.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:
The defendant, Billy Lee Lobb, and Richard Allen, were jointly indicted for the burglary of a building known as the Night Owl Bar-B-Q located south of the city of Macon. The building was owned by Dell Carroll. Allen was separately tried by a jury, found guilty and sentenced to the penitentiary. His conviction was affirmed in People v. Allen, ante, p. 55.
Defendant Lobb was also tried by a jury which returned a guilty verdict, and he was sentenced to the penitentiary for a term of not less than five nor more than twenty years. By this writ of error he urges that the evidence did not establish his guilt beyond a reasonable doubt; that the trial court erred in admitting certain evidence; that the court erred in instructing the jury; and that the State's Attorney made improper remarks in argument. He also challenges the constitutionality of Supreme Court Rule 24-1.
The testimony of Dell Carroll and his manager was substantially the same at the trial of both Allen and Lobb. An adequate summary, except for the facts stated hereafter, will be found in Allen, and will not be repeated here.
Carroll further testified that when he arrived at the tavern he stationed himself near a small ditch at a point about 60 to 70 feet from the west door of the tavern. At that time, a two-bulb light, 20 feet high, located on a pole about 8 feet from the door, was burning. In addition, there were six or seven lights illuminating the interior of the building. A pane of clear glass, covered by a venetian blind, was in the upper portion of the inner door of this entrance, and the adjoining wooden storm door enclosed ten sections of glass which were horizontally and vertically separated by supporting panels. As Carroll looked toward the door, he could see two men inside the building who tore the venetian blind from the inner door. One man was short and stocky and the other, who pried on the lock and the door with a yellow-handled screwdriver, was tall.
After working for about five minutes, the tall man, whom Carroll identified as the defendant Lobb, broke the the lock, removed the inner bar and opened the door. Allen, who Carroll identified as the short and stocky man, came out of the building closely followed by Lobb. Carroll shouted "halt," and then shot both men with a shotgun. They were hit but continued to run and he lost sight of them temporarily. Carroll saw Lobb again when he emerged from behind a building and turned to go east. Carroll fired again when Lobb disregarded his order to halt, and Lobb ran across the road and into an alfalfa field about 150 feet to the north. Carroll noticed that Lobb was wearing gloves. Later, a jacket, a pair of brown gloves and a yellow-handled screwdriver were found in the alfalfa field.
Clara Tomlinson, a widow who lived on a farm about three quarters of a mile from the Night-Owl Bar-B-Q and tavern, appeared as a witness for the People. She testified that during the early morning hours of August 25, 1957, she heard her dog bark and got up to investigate. After turning on an outside light she saw nothing, so returned to bed. Sometime after daylight, the defendant Lobb appeared at her back door and asked if her husband was home. When she told him her husband was dead, he tried to open the door, but was unable to do so because it was locked. Defendant was then dirty and wet, and blood was on his clothing. He requested a drink of water. She called her grandsons and when they came to the kitchen, she handed him a glass and told him to go to the outside pump. Later he told her that he had been hitchhiking through Macon and had been let out of a car near the tavern; that he went to the front door and, finding no one there, then went around to the back door where someone shot him. He asked her to take him some place for help. She refused, but called Bob Timmons, a deputy sheriff, who picked up Lobb.
Lobb testified that he had been drinking with Allen and others at a tavern in Decatur during the evening of August 24, 1957, and that sometime between 11:30 and 12:30, Marilyn Dodson, a friend, drove him to his home. She entered the house but he remained in the car where he fell asleep. Allen appeared and suggested that they find a poker game. They got into Allen's car and, after visiting a local hotel and finding no game in progress, Allen suggested that they might find a game in Macon. Lobb protested that he was tired but finally consented to go. When they arrived in Macon, they drove directly to the Night Owl tavern where Allen parked his Plymouth automobile behind the motel which was then under construction. After observing lights near some cabins, Allen stated that he "guessed this was the place," and left the car, but Lobb remained there to rest.
After Allen had been gone for 20 or 30 minutes, Lobb testified that he became worried and went to one of the cabins where he knocked on the door, but received no answer. After remaining there for about eight minutes, he walked toward the tavern. At that time a car drove up, an armed man got out of it, and they met as Lobb came around the back of the car. The shotgun which the man carried was pointed directly at Lobb who raised his hands and started to ask the man not to shoot, when the gun was discharged, striking Lobb in the stomach. Lobb stated that he then heard a sound behind him like that of glass breaking; that simultaneously the tavern door swung open, striking him in the back, and Allen rushed out; that both men were struck by shots fired at this time; and that the witness was walking away "at a trot" when he was shot the third time.
After he got across the road and into a ditch, Allen came to him and asked how badly he was hurt. He testified that he asked Allen why he entered the place, but Allen made no reply. Allen then told Lobb he was going to get help and left. With the aid of a board which he used as a crutch, Lobb then crossed the fields to the Tomlinson barn, where he took refuge.
Lobb further testified that after daylight he went to the house and asked the lady there to call his mother, but she refused; that she gave him a glass, after which he went to the well and got a drink; that she then stated she would call a man she knew; and that deputy sheriff Timmons soon appeared and took him to the hospital. The defendant admitted he had worn the jacket which was found in the field on the night in question, but when shown the gloves and screwdriver, he stated that he had never seen them before, "that he knew of." He denied that he had been inside the tavern and denied any knowledge of Allen's intention to commit a burglary. He did not deny telling Mrs. Tomlinson that he had been hitchhiking just prior to the shooting.
On cross-examination, defendant admitted that he, Allen and Marilyn Dodson left the State together on October 28, 1957, after his arraignment on the criminal charge. He claimed that this was Allen's idea and that he left because he was afraid of him. He further testified that they had been together in California and had later traveled with the same carnival. From defendant's own admissions, the testimony of the sheriff, and the documentary evidence introduced, it appears that defendant left the jurisdiction while out on bail on the charge of burglary, and that his bond was forfeited. He was apprehended in Kansas and returned to Illinois by the sheriff to stand trial.
The sheriff testified that on the return trip he discussed the case with defendant and that defendant stated, among other things, that as he and Allen emerged from the door Carroll "just kept ...