WRIT OF ERROR to the Circuit Court of Pulaski County; the Hon.
HAROLD L. ZIMMERMAN, Judge, presiding.
MR. JUSTICE DAILY DELIVERED THE OPINION OF THE COURT:
Millard Ford, defendant, was indicted for the fatal shooting of Walter Unger, and after a jury trial in the circuit court of Pulaski County, was found guilty of murder and sentenced to the penitentiary for a term of 99 years. Upon writ of error he now contends (1) that the trial court improperly allowed private counsel to assist in the prosecution of this case, (2) that the selection of jurors was contrary to statute, (3) that the trial court erred in permitting the testimony of a prosecution witness whose name had not appeared upon the indictment prior to trial, (4) that certain given instructions were improper and prejudicial, (5) that the conduct of certain officials and jurors during trial was prejudicial, and (6) that the verdict of guilt was not supported by the evidence.
The shooting occurred between 3:30 and 4:00 A.M. on the morning of October 22, 1951, at Tiny's Place, a roadside tavern located near Mound City. Hazel Jordan, operator of the nearby Sunny Dell tavern at which Unger was employed as a bartender, testified that at about 3:00 A.M., defendant, in the company of his wife, entered her establishment and soon became involved in an argument with Unger during which defendant used obscene language and threatened to kill the latter whereupon Unger led him to the door and ordered him to leave the premises. Soon thereafter, being between 3:30 and 3:45 A.M., the tavern closed and Unger, driving alone in his panel truck, proceeded toward Mound City. This witness further related that Unger and defendant had known each other for approximately two years, that defendant frequently visited her tavern, and that only a few nights before the shooting she herself had hit defendant over the head with a serving tray during an argument.
Imon Goins, a taxi driver, verified the fact that Unger had led defendant to the door and "spun" him from the Sunny Dell tavern following an argument between the pair, during which each threatened to kill the other, and further related that before proceeding towards Mound City in his automobile, defendant, who was intoxicated, asked Goins to tell Unger that he was going home for a gun to kill the latter. Upon being informed of this threat, Unger removed a gun from a drawer and laid it beside the cash register, after which Hazel Jordan, the proprietor, telephoned someone and then ordered the tavern closed. Goins then left the premises in his cab, and as he passed Tiny's Place on his way to Mound City, he noticed defendant's wife sitting in their automobile which was parked near the road some sixty feet from this tavern.
The People also produced John Flanders, a bartender at Tiny's Place, who told of the events leading up to the killing. According to his account, defendant entered this second tavern sometime after 3:30 A.M with his wife and asked Flanders for a gun "to protect some whiskey," whereupon the bartender went into a back room, got a gun from another patron, and sold it to defendant for fifty dollars. Upon discovering the gun was empty, defendant asked for and was given five shells but they were not immediately placed in the gun. Defendant's wife left the tavern alone and he followed shortly thereafter, but as he did so, Flanders stepped into the back room and did not see or hear the actual shooting.
Another bartender at Tiny's Place, Robert Phillips, testified that after defendant and his wife entered the tavern he heard defendant ask for some shells. As related by this witness, the wife stayed in the tavern a very short time but defendant remained for some fifteen minutes before he and another customer, Joe Barnett, left together. Very shortly the latter returned to the tavern alone, and as he did so, the witness, through a large picture window at the front of the tavern, observed defendant fire three revolver shots from a standing position, heard two more shots, and then saw defendant enter the automobile where the wife was waiting.
Joe Barnett, another prosecution witness, recalled talking with defendant at Tiny's Place prior to the shooting, at which time defendant, who had been drinking heavily, allegedly told Barnett that he was going to kill Unger and produced a gun to emphasize his threat. Barnett attempted to reason with defendant and even offered to drive him home but to no avail whereupon both left the tavern together. As they did so, according to the witness, Unger's truck pulled off the highway into the parking area in front of the tavern, and defendant warned Barnett to get inside. Upon entering the tavern, Barnett heard five shots and then through the tavern window, saw defendant get into his car and drive off. When the witness returned outside he observed Unger lying face down upon the ground.
Another tavern patron, Edgar Terrell, told of hearing the five shots and particularly noticed a hesitation between the third and fourth. Dr. Grossman, a pathologist, testified that five bullets struck Unger, one of which entered the back of his head, another the chest, a third entered the front of the left thigh, a fourth the lower back, and the fifth struck the abdomen. It was the witness's opinion that the bullets entering the thigh, chest, and abdomen traveled horizontally but he could not determine the course of the other two projectiles. Carl Alstat, a Mound City undertaker, was of the opinion that the bullet entering the thigh had traveled an upward course, that the one striking the abdomen had followed a horizontal line, and that the three remaining shots traveled a downward course. It was stipulated that the gun purchased by defendant at Tiny's Place was the lethal weapon and that, following the shooting, it was found by the side of a blacktop road some five or six miles away.
Defendant admitted he fired the fatal shots but insisted it was done in self-defense. According to his version, Unger was a vicious individual who at all times carried a gun and had, on at least two prior occasions, beaten defendant with a black-jack following arguments over gambling debts. About October 1, 1951, Hazel Jordan, who employed Unger, suggested that defendant meet her in Chicago, but when he refused and threatened to tell her husband, Jordan struck defendant over the head with a serving tray and promised to "get even" anyway she could. As further related by defendant, a few nights later while at the Sunny Dell tavern, Hazel Jordan asked defendant to tell her husband that no such proposals had in fact been made and when he refused this request, she again threatened him. On the day before the shooting, being about 10:00 A.M. on October 21, 1951, Unger visited defendant at the latter's shop in Mound City and threatened to kill him unless he told Hazel Jordan's husband that there was no truth to his earlier statement, whereupon defendant promised to go to the tavern that same evening and so tell the husband. Ford closed his shop between 12:30 and 1:00 A.M. the morning of October 22, and together with his wife proceeded towards the Sunny Dell tavern, stopping however for two drinks on the way. They arrived at their destination about 3:00 A.M. only to find the husband already in bed, and shortly thereafter defendant became involved in a bitter argument with Unger which resulted in his being thrown out the door amidst threats by Unger that he would kill defendant even if he had to follow him all the way home. Defendant denied telling Goins, the taxi driver, of his intention to kill Unger but insisted he had told Goins to inform Unger that he would tell Hazel Jordan's husband anything Unger desired. Thereafter, according to defendant, he and his wife drove to Tiny's Place where he acquired a gun and shells from the bartender "to get some protection." His wife left the tavern first and waited just outside the front door in a weather-protector type entrance way until he joined her a few minutes later, but as they both stepped from the entrance way into the parking area Unger suddenly appeared, threatened to kill him, knocked him down, grabbed both his feet, and proceeded to drag defendant on his back across the ground for a distance of eight to ten feet before defendant was able to free his left foot. This, continued defendant, made Unger furious, and as Unger started to reach into his pocket, defendant drew his own revolver and from a prone position fired five shots at Unger as fast as he could pull the trigger whereupon Unger fell forward and across defendant's right leg. After freeing himself, defendant recalled he walked to his car where his wife was waiting, drove to Mound City to find the town marshal but without success, and then proceeded to drive home, stopping enroute to throw the gun away. He insisted he did not see either Joe Barnett, Edgar Terrell, or Robert Phillips at Tiny's Place the night of the shooting, and said that prior to the shooting he had consumed only three drinks and three beers.
Mable Ford, defendant's wife, corroborated her husband's account and insisted that although she left Tiny's place a minute or so before her husband and waited for him in the outside weather protector, neither knew Unger was around until he grabbed defendant. Jess Buchanan, a defense witness, testified that he was present when Unger came to defendant's place of business on the morning of October 21, and several other witnesses testified that Unger was a strong and vicious man. Dillion Potts and Orville Bledsoe testified that they were drinking together that morning and at about 3:30 A.M. or 4:00 A.M. they stopped their car just off the highway in front of Tiny's Place and observed Unger strike defendant as he and his wife left the tavern, but they immediately proceeded down the road and did not see or hear any shooting.
At the trial, Peyton Berbling, an attorney and resident of a neighboring county, appeared with the Pulaski County State's Attorney in prosecution of this case and was compensated partially by Unger's widow and partially by the State's Attorney. We see no error in this regard inasmuch as we have consistently held that a trial court, in its discretion, may permit a privately employed attorney to assist the State's Attorney in the prosecution of a criminal case so long as the defendant is adequately represented, and have held the statute prohibiting a State's Attorney from receiving any private reward for performing official duties (Ill. Rev. Stat. 1951, chap. 14, par. 7,) is not applicable to this situation. (Hayner v. People 213 Ill. 142; People v. O'Farrell, 247 Ill. 44; People v. Strosnider, 264 Ill. 434; People v. Kingsbury, 353 Ill. 11; People v. Stark, 324 Ill. 289; People v. Donaldson, 255 Ill. 19; People v. Hartenbower, 283 Ill. 591; People v. Miller, 13 Ill.2d 84.) From the record it appears that defendant was represented by an experienced and able attorney of his choice and was not prejudiced by the presence of privately employed counsel. Although defense counsel initially objected to the appearance of Berbling, it appears that the objection was for the purpose of determining if any of the jurors had contributed towards his employment and was not directed against his participation in the case as special prosecutor.
Defendant next contends that the selection of jurors was contrary to statute, and in support thereof, states that names were placed in the jury box before prior names had been exhausted, that the sheriff had not served all persons on the prior venires before the fourth special venire was called, and that the court ordered the summoning of bystanders to complete the jury rather than an eighth special venire. The first objection, although initially raised by defense counsel at the time of trial, was later withdrawn by him and is not before us at this time. It appears that it took nine days to complete the jury during which time some seven hundred persons were summoned for jury duty. Nevertheless, upon hearing of defense counsel's motion to quash the fourth special venire, it developed that a small number of those individuals named on the prior venires had not been found, and in a few instances, the sheriff had made only one attempt to determine their whereabouts. The statute (Ill. Rev. Stat. 1951, chap. 78, par. 11,) states that the sheriff shall summon each of the persons whose names have been drawn for jury duty and provides for a monetary fine should he fail to exercise proper diligence in this regard. Under the facts of this case it cannot be said that this duty was violated. Furthermore, there is nothing to show that defendant was in any way prejudiced by the failure to summon these particular individuals and the matter was not assigned as error in defendant's written motion for a new trial. (People v. Anderson, 406 Ill. 585; Wilhelm v. People, 72 Ill. 468; People v. Vickers, 326 Ill. 290.) As to the summoning of bystanders, it appears that the regular panel, the special panels, the county jury box, and the master list were exhausted when the court ordered the sheriff to summon thirty additional persons from the body of the county to fill the panel for this particular case, and upon defense objection to the sheriff acting in this capacity, two bailiffs were sworn to discharge the duty. We believe this was proper under the circumstances of this case. Our statute in this regard (Ill. Rev. Stat. 1951, chap. 78, pars. 12 and 13,) authorizes the summoning of such individuals by the sheriff when necessary to complete a jury for a particular cause, and further provides for the appointment of bailiffs should objection be made to the sheriff's participation. People v. Bedard, 11 Ill.2d 622.
Further objecting to the jury, defendant argues that he was prejudiced by the fact that the first eight jurors accepted were Negroes, by improper remarks made by the State's Attorney during the voir dire, and by the length of the voir dire itself. It is true that the first eight jurors picked in this case were Negroes, and that after two of those jurors had expressed reluctance about serving upon an all colored jury and the defense counsel had asked that Negroes be excluded from the third jury panel, the court sustained the defendant's motion and thereafter only white jurors were accepted. We fail, however, to see how defendant was prejudiced by this action. Since the record does not indicate that he exhausted his peremptory challenges, he was as much responsible for picking the first eight jurors as was the People, and the remaining jurors were selected in accordance with his own request. We have frequently stated that a defendant, having failed to use his peremptory challenges, is in no position to complain concerning jury selections. (Siebert v. People, 143 Ill. 571; Wilson v. People, 94 Ill. 299; Ochs v. People, 124 Ill. 399.) Furthermore, there being no evidence of any attempt to systematically exclude white jurors as such, it cannot be said that defendant was denied any constitutional rights in this regard. (Eubanks v. State of Louisiana, 356 U.S. 584, 2 L.ed.2d 991.) Following defense counsel's oral motion for exclusion of further Negro jurors, during which time, in their presence, the defense counsel indicated he was acting to protect the jurors from embarrassment, the State's Attorney remarked: "We are the judges of whether people are embarrassed or not. It is very strange we have developed an interest insofar as knowing whether people have sense enough to know what they are doing or not." The statement, although ill-advised, was prompted by and in opposition to defendant's stated position, and was ...