Appeal from the Circuit Court of Cook County; the Hon. CHARLES
S. DOUGHERTY, Judge, presiding. Judgment reversed and cause
remanded with directions.
MR. JUSTICE FRIEND DELIVERED THE OPINION OF THE COURT:
Plaintiff Nick Nechi, licensee of a tavern at 1121 West Wilson Avenue in Chicago, filed a statutory action under the Administrative Review Act (Ill Rev Stats 1961, c 110, §§ 264-279), as provided in sections 8 and 8b of article VII of the Liquor Control Act (Ill Rev Stats 1961, c 43, §§ 153 and 154a), to review the administrative orders of the local liquor control commissioner and the license appeal commission. The mayor, as local liquor control commissioner, instituted proceedings for the revocation of Nechi's liquor license. On December 14, 1961, he was served with notice that a hearing of the charges against him would be held on December 18, 1961. The hearing was conducted by John F. Cashen, Jr., as deputy local liquor control commissioner. Nechi appeared personally and was represented by counsel; his attorney was afforded full opportunity to participate in the hearing. The commissioner revoked Nechi's Chicago retail liquor dealer's license. Nechi appealed the order to the license appeal commission which affirmed the commissioner's action by finding:
"(A) That the Mayor, as Liquor Control Commissioner, has proceeded in the manner provided by law.
"(B) That the Order of Revocation is supported by the Findings.
"(C) That the Findings, namely: `That on November 5, 1961, during an altercation on the licensed premises, Nick Nechi, the licensee, fatally shot and killed one Eugene Kimbrell, a patron on said premises, in violation of the Statutes of the State of Illinois.' are supported by substantial evidence in the light of of the whole record."
Plaintiff asked the trial court to review the record, and to reverse the orders of the local commissioner and of the commission as being contrary to law and to the manifest weight of the evidence, and wholly unsupported by any substantial evidence. The trial judge, adopting the interpretation urged by plaintiff, reversed and vacated the revocation order of the local commissioner, and likewise reversed and vacated the order of the license appeal commission sustaining the action of the local commissioner. Defendants appeal.
The facts disclose that on November 5, 1961 Nick Nechi, licensee of the tavern in question under a retail liquor dealer's license issued by the City of Chicago, shot and killed a patron on the licensed premises. The victim, Eugene Kimbrell, was thirty-three, married, and the father of one child, a nine-year-old boy. He had lived in Chicago for seven years, and for the last two years had worked as a machinist for Cummings Corporation. He had no police or felony record.
Kimbrell and Guthor Lindsey left the latter's home about six o'clock Saturday night, November 4, 1961, and first went to the Silver Moon Tavern where they remained until about nine-thirty, each drinking about six bottles of beer. Leaving there, they went together to the Patrick Henry Tavern, Nechi's licensed premises, arriving there between nine-thirty and ten. On their arrival, Nechi spoke to Lindsey but not to Kimbrell. The tavern was crowded, and since there were no available seats Kimbrell and Lindsey stood at the bar while they drank four or five beers. They next went to the Cafe Berlin, arriving there about one o'clock Sunday morning, November 5, 1961. After drinking one beer there, they returned to the Patrick Henry. Going to and returning from the Cafe Berlin, they rode in an automobile driven by Powell Ernest. Back at the Patrick Henry they had two more beers; by then the count was thirteen or fourteen beers for each of them. Lindsey and Kimbrell became separated when Kimbrell left with Ernest and another patron to go to a tavern on Clark Street, while Lindsey went out to get a sandwich. After having eaten, he returned to the Patrick Henry about three twenty-five. Kimbrell and his companions had already come back to the Patrick Henry, and were standing along the wall while they drank beer.
A fight broke out in the tavern between one Wilcut and an unidentified person. Nechi stopped the fight and ejected the participants from the tavern. Although Kimbrell had apparently not been involved in the fight, plaintiff also requested him to leave and not return. Lindsey told the group he was with that he was going to go with Kimbrell.
Kimbrell and Lindsey left the tavern and started to walk west on Wilson Avenue. When they had reached a point about one-half block west of the licensed premises, someone in front of the tavern called to Kimbrell to come back. He went back alone, and Nechi compelled him, at gun point, to go into the tavern, and forced him, still at gun point, to march through the crowded premises to a small office at the rear of the tavern. Within the next two or three minutes Nechi had shot and killed Kimbrell; a police officer testified Kimbrell was lying on his stomach, on his right cheek, within a pool of blood. Beside him there was an open knife with a two-inch blade. No finger prints were found on the knife. Nechi did not testify, nor did he call any witnesses on his behalf.
By way of justification, Nechi claims that he killed Kimbrell in self-defense, and that the coroner's jury, at the inquest held the day after the shooting, voted that the killing was justifiable homicide. Plaintiff bases his contention of justification and self-defense upon the statements of four police officers who appeared in his tavern shortly after the shooting. Their testimony was substantially to the effect that when they arrived Nechi told them that, during an argument, in self-defense he shot Kimbrell who lunged at him with a knife while Nechi was telephoning the police. He had the gun which was admittedly his, and turned it over to the police. The police were testifying as to what Nechi said to them, not vouching for Nechi's veracity. Nechi, who was present and represented by counsel at the hearing before the commissioner, was in a position to confirm under oath the testimony of the police officers, but failed to do so. "It is well settled that the failure of a party to a suit to produce evidence available to him gives rise to a presumption against him." Tepper v. Campo, 398 Ill. 496, 505, 76 N.E.2d 490 (1948).
As against the foregoing evidence, the testimony of eyewitnesses Guthor Lindsey and Elmer and Betty Kassinger indicates that the victim Kimbrell committed no crime or violation of law in their presence which would seem to justify Nechi's apprehension of Kimbrell. Police Sergeant Ingham testified that Nechi told him that there had been a fight in the tavern prior to the shooting and "that at some point in the fight this deceased had been at the rear of Mr. Nechi, standing at his back with an open knife, and when Mr. Nechi was aware of that fact, he told me he got a revolver from behind the bar, and he got this the deceased that is, he got to the deceased and made him go into the rear room of the tavern to hold him while he called the police." This testimony cannot be reconciled with the undisputed fact that Nechi had ordered the deceased out of the tavern after the fight was over, that Kimbrell left as directed, peacefully, that after leaving the tavern he had walked at least half a block with his friend Lindsey when he was called back and, at gun point, was forced by Nechi to enter the tavern and then, still at gun point, marched through the crowded premises by Nechi to an office at the rear of the tavern. Lindsey testified that he overheard Kimbrell ask Nechi why he was being ordered to leave the tavern and not return, and that Nechi replied that he didn't like to see a fellow kicked while he was down. Nechi must have meant, Lindsey reasoned, that Kimbrell kicked the fellow while he was fighting; but Lindsey himself, who was in the rear, did not see any kicking. In his brief, Nechi's counsel maintains that Nechi clearly had a right to make a citizen's arrest of Kimbrell, either because Nechi had seen Kimbrell kick a man in the tavern while the man was down, or because Nechi realized that Kimbrell was standing behind him with an open knife while he was trying to break up the fight. Nechi is willing to adopt either reason as justification for his conduct. But he offers no explanation of his enigmatic conduct in first ordering Kimbrell to leave the tavern and a few minutes later forcing him to return at gun point; no explanation as to why, in an alleged scuffle between him and Kimbrell, which no one witnessed, it was necessary for him to fatally shoot a "little guy," five feet seven, weighing one hundred forty pounds and "carrying" more than twenty-six glasses of beer. Moreover, if Nechi was apprehensive of Kimbrell, it seems strange indeed that he wanted to be alone with him in a small office in the back of his tavern; one would suppose Nechi would ask someone to call the police while he, Nechi, was holding Kimbrell.
Although the question of Kimbrell's sobriety was not directly at issue, it should be noted that he and Lindsey had been drinking steadily from six o'clock Saturday night until after three Sunday morning. They had six bottles of beer at the Silver Moon Tavern, then four or five bottles at Nechi's Patrick Henry Tavern, one beer at Cafe Berlin, two more beers at Nechi's on their second stop about one in the morning. Lindsey was not with Kimbrell when he left with other companions to go to a tavern on Clark Street, but when Lindsey came back for a third time to Nechi's, about three twenty-five, Kimbrell and his friends had already returned and were standing along the wall while they drank beer. Thus, in the course of the evening, Kimbrell had had an aggregate of more than thirteen bottles or twenty-six glasses. Section 131 of the Dram Shop Act (Ill Rev Stats 1961, c 43) provides that "no licensee nor any officer, associate, member, representative, agent or employee of such licensee shall sell, give or deliver alcoholic liquor . . . to any intoxicated person. . . ." In the recent case of Nystrom v. Bub, 36 Ill. App.2d 333, 184 N.E.2d 273 (1962), the plaintiff alleged that the defendant tavern operators sold to a patron, one Burroughs, alcoholic liquor which caused, in whole or in part, his intoxication, and that while so intoxicated as a result of the consumption of such alcoholic liquors he drove his automobile in a drunken manner and so collided with a car driven by the plaintiff, who sustained injuries as the result of the collision. Burroughs had had, at the most, three cans of beer in the defendants' tavern. The jury returned verdicts of guilty against the tavern operators as well as against the defendant property owner, and the court entered judgments against the defendants in amounts totaling $15,000. On review the judgments were affirmed. With reference to defendants' contention that there was no competent evidence to establish the intoxication of Burroughs, the court said (p 346): "Whether a person is drunk or sober are facts patent to the observation of all, and their comprehension requires no peculiar scientific knowledge: Dimick v. Downs (1876) 82 Ill. 570." Lindsey testified that when he went back to the Patrick Henry the second time, about one in the morning, he was "tight"; at that point Kimbrell had drunk about the same amount as Lindsey. After having gone out for a sandwich, Lindsey, about three twenty-five, for the third time came back to the Patrick Henry; Kimbrell and his companions had already returned from a tavern on Clark Street and were standing along the wall drinking beer. By one that morning Lindsey considered himself "tight"; it seems a safe assumption that by three twenty-five Kimbrell, who had not previously drunk anything for six months, would show some evidence of intoxication. Without question, the bartender should have refused to serve Lindsey after one o'clock, and if, as seem very probable, Kimbrell was intoxicated while he was in the tavern, the bartender should have refused to serve Kimbrell.
Nechi, present with counsel at the hearing before the commissioner, made no offer to explain the events which preceded the shooting. His reticence seems strange, since it was he who was seeking to retain his license. What, exactly, happened just before the fatal shooting? Why did Nechi want to turn Kimbrell over to the police because he had seen Kimbrell kick some one or because while he, Nechi, was breaking up a fight in the tavern, he had seen Kimbrell standing behind him with an open two-inch blade knife? After the fight was broken up, after Kimbrell had peacefully left the tavern, Nechi had everything under control. Why did he order Kimbrell to leave the tavern and then, at gun point, force him to return? What was his motivation for ordering Kimbrell back to the tavern and forcing him into an inner office where he was out of sight of everyone? These unanswered questions, together with Nechi's disregard of the statutory prohibition against ...