WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
GROVER C. NIEMEYER, Judge, presiding.
MR. JUSTICE KLINGBIEL DELIVERED THE OPINION OF THE COURT:
Larry Oden and James Davis were tried jointly in the criminal court of Cook County for the murder of one Roy Carney and the jury returned verdicts finding each defendant guilty and fixing their punishment at death. A writ of error has been issued to review the judgments of conviction. Before proceeding to an analysis of the assignments of error by each defendant, we believe that it is necessary to summarize the evidence at the trial.
Before trial each defendant moved to suppress confessions which they had made. At the hearing on the motion to suppress Davis testified that he was arrested in Louisiana and was brought back to Chicago on the train. On his return from Louisiana he was taken from the train depot to the police station, where his arms were handcuffed to a chair and his feet were handcuffed to a radiator. He testified that a police officer named Irven slapped him, kicked him, and called him names. Irven asked him about the guns that were used in the crime and Davis told him that they were hidden in his back yard. According to Davis the officers then went out to his home where they searched for the weapons without success. They then came back and got Davis and took him out to the house where they made a further fruitless search for the guns. Davis was then taken back to the station where he was slapped and beaten by the police and subjected to other abuses. He testified that he heard Irven call Mrs. Carney, the widow of the deceased, and tell her that they had picked up Davis in Louisiana. He testified that Irven also told Mrs. Carney how Davis was dressed so that she would be sure to identify him. Davis testified that he confessed as a result of the beatings and because he knew that Mrs. Carney would identify him. He was then questioned by an assistant State's Attorney and the questions and answers were taken down in shorthand and typed. When the typed statement was submitted to Davis, he refused to sign it and claimed that it was not true. Officer Irven denied that he had abused Davis in any manner and three other police officers who had been present while Davis was being questioned testified that at no time was any force or threats used against Davis. The trial judge then denied Davis's motion to suppress.
In support of his motion to suppress, Oden testified that on the night of the crime, he had borrowed Davis's car and that he and two men, referred to only as Jimmy and Danny, were in the car looking for some girls. They stopped at a tavern known as the Marquette Lounge and Oden and Jimmy went in to get some cigarettes. They were informed that the tavern did not sell cigarettes and returned to the car. Danny then borrowed Oden's coat and Danny and Jimmy went back into the tavern, leaving Oden in the car. Oden heard a shot from the tavern and Danny and Jimmy ran out of the tavern and drove off with Oden. They drove to Davis's house and Jimmy told Oden that he and Danny had shot a man in the tavern and that if the police questioned Oden, he should tell them that Davis was driving the car at the time. Jimmy threatened to kill Oden's girl friend and Davis's children if Oden did not tell this story to the police. Oden was arrested four days later and signed a confession an hour or so after his arrest. He testified that the police never threatened or abused him and testified that he signed the confession because of Jimmy's threats. The trial judge denied Oden's motion to suppress.
After the hearings on the motions to suppress the case proceeded to trial before the jury. Leola Woods testified that on the night of the crime she was employed as a bar maid in a tavern known as the Marquette Lounge. At about 9:45 in the evening the defendant Oden came in to the tavern and asked for some cigarettes. Mrs. Woods told him that they did not sell cigarettes and he left the tavern. About ten or fifteen minutes later Oden and Davis came into the tavern and Oden walked to the washroom and told Davis to order him a beer. Davis sat at the bar and ordered two bottles of beer. Oden then returned from the washroom and sat down at the bar for a few moments and then left his seat at the bar and walked down to the end of the bar where Mrs. Woods was standing and pointed a gun at her and told her that this was a holdup. Davis then left his seat at the bar, drew a gun and told everybody to go to the back of the tavern. Roy Carney at this time was standing near the end of the bar with his wife, and Oden told Carney to turn around and put his hands on the refrigerator. Carney complied with this request and Oden searched Carney. Davis was engaged in getting the rest of the customers to go to the rear of the tavern. One of the customers who was sitting in a booth with his wife was slow in responding to Davis's demand and Davis hit him on the head with his pistol. After Carney had been searched he went into the back room and Oden followed him. Davis then told Mrs. Woods to open the cash register and as she was opening the register she heard a scuffle and a shot from the back room and heard Oden call out. When Oden called, Davis went to the back room and just as he stepped through the doorway Mrs. Woods heard three more shots. She jumped over the bar and ran out the door, where she saw a watchman and told him that there had been a holdup. The watchman took out his pistol just as Oden and Davis were running out of the door and shouted to them to halt and fired in the air. They said something to the watchman and ran toward a car. About a week later Mrs. Woods went to the police station and identified Oden out of a lineup of six or seven men. When she identified him Oden said to the police, "That is the bar maid that served the beer." She identified both Oden and Davis at the trial.
Carol Carney, the widow of Roy Carney, testified that she saw Oden when he confronted Mrs. Woods with a gun in his hand and told her that it was a holdup. She then looked around and saw Davis across the room. She testified that Oden searched her husband before sending him into the back room and that after he was searched he went in to the back room as he had been ordered. She heard Davis tell Mrs. Woods to open the cash register and testified that at this time she heard a shot from the back room where her husband and Oden had gone and heard Oden yell for help. Davis then went to the back room and as he got to the door he fired several shots. Oden and Davis then ran out of the tavern. Mrs. Carney went to the back room and found her husband lying unconscious on the floor. On cross-examination she testified that she remembered seeing Oden come in for cigarettes but thought nothing of it at the time. However, after the attempted robbery and the murder she realized that Oden had come into the tavern a few minutes earlier for the cigarettes. She likewise identified Oden at the police lineup and identified both Oden and Davis at the trial.
Edward Stansell testified that on the night of the crime he was in the Marquette Lounge and saw two men come in and ask for cigarettes. A few minutes later they returned and announced a holdup. He saw one of the men slap one of the customers on the head and saw another man take Carney back in the kitchen. He heard a gun go off two or three times and heard the man in the back room call for his partner. He saw the other man walk to the back room and heard two shots fired. On cross-examination he testified that he had told the police that he could recognize both men by face, stature, and complexion, and testified that at the time of the trial he was sure that Davis was one of the robbers. He testified further on cross-examination that he was not able to positively identify Oden except by stature and build. At the police lineup he did not positively identify Oden but stated that he was about the size and color of the robber. He was not at that time able to say definitely that Oden was the man and was not at the time of the trial able to positively identify him. He testified that at the lineup the police asked Oden if he recognized Stansell and Oden replied that he did not recognize him, but he did recognize Mrs. Woods as the bar maid that served him the beer.
Peter Latsis testified that he was a customer in the tavern at the time of the crime and that he was in the back room when Carney was shot. When he walked in the room Carney was lying on the floor on his back and Latsis, in response to a demand by the gunman, laid down beside Carney. The gunman then said to Carney, "You have something on you." A struggle ensued and a gun went off. The gunman yelled for help and the other man came into the back room and fired two shots. Latsis was not able to identify either of the men.
Les Reed testified that he was also a customer in the tavern. He was sitting in a booth with his wife, and one of the gunmen, whom he identified as Davis, hit him on the head with his gun and told him to stand up and go to the back of the tavern. He heard some shots from the back room and saw Davis go to the back room and saw him shoot into the back room from the doorway. This witness was not able to identify Oden either at the lineup or at the trial.
Jay Anderson testified that he was a watchman and that as he was making his rounds Mrs. Woods came out of the tavern and told him there was a holdup. He went across the street and then saw two men run out of the tavern. He identified them only as a tall man and a shorter man. Anderson shouted to these men and demanded that they halt. One of the men kept running but the other man turned around and pointed a gun at Anderson and told him to stay where he was. Anderson then fired two warning shots and the second man then ran after the first man. Anderson ran down the opposite side of the street and saw the men get into a Cadillac automobile. He identified a picture of an automobile as "looking like" the car that the men drove away in. He was unable to identify either of the men.
Bryan Connolly testified that he was a police officer and that he had been assigned to the investigation of Carney's murder. In the course of his investigation he talked to several people and as a result of these conversations he went to Oden's apartment and placed him under arrest. At that time Oden told Connolly that there were some guns in the bedroom closet and Connolly's partner went in the closet and got three guns. As they were leaving the apartment Oden said "I will tell you the story. I took part in the attempted robbery and murder of Roy Carney, Jr." Connolly then went to Davis's apartment and searched the apartment and went out to the rear yard where he found a Cadillac car which he took into custody. A picture was taken of this automobile, which picture was identified by Anderson at the trial as "looking like" the get-away car.
Connolly testified that after Davis was apprehended, Davis told him that he would tell him where the guns were that were used in the shooting. Connolly told Davis that he thought they already had the guns but Davis told him that the guns that were used in the murder were buried at the rear of Davis's home. Connolly and another officer went to the Davis home and dug up the yard looking for the weapons but did not find them. Subsequently, he had a talk with Davis's father-in-law and after this conversation he went back to Davis's apartment and the father-in-law pointed out the guns which were then lying in the bottom of one of the holes that the officers had dug in the yard. They then brought Davis out to his apartment and he admitted burying the guns after the murder and stated that he had also buried a bag containing the expended cartridges. A further search was made and this bag containing the cartridges was found.
The confessions were then admitted in evidence. In Davis's confession he said that he and Oden both went into the tavern and asked for cigarettes. When they were advised that the tavern did not sell cigarettes they went back to the car to plan the robbery. They went back in and Davis told Oden that he didn't think the place was "right" and that he thought the "big guy" was a policeman. However, they decided to go ahead with the robbery and both of them drew their guns and announced that they were holding up the place. Davis was engaged in ushering the customers to the rear of the tavern when he heard two shots from the rear. He became excited and ran to the back room where he saw two figures struggling on the floor. He fired twice and saw the officer (Carney) attempt to rise. Davis then fled and as he was leaving he heard another shot. Oden followed Davis out of the tavern and as they ran out the door they saw the watchman, who fired one shot at them. They got in the car and drove down the street. They were driving the wrong way on a one-way street and were stopped by a policeman who let them go after Davis gave him five dollars. They then went to Davis's home and Davis buried the guns in the back yard. The confession contained other details of the events of the night of the crime, but it is not necessary to relate them here.
In Oden's confession, he related that he and a man referred to only as Slim went into the tavern to get cigarettes, and returned to the car to plan the robbery. He stated that both he and Slim pulled their guns and announced that they were holding up the place. The confession stated that Oden took Carney and another man into the back room and made them lie down. He saw Carney reach for a gun and he and Carney struggled on the floor. Oden's gun discharged and Oden yelled for help. Slim came back and shot two or three times. Oden and Slim then ran out of the tavern, were confronted ...