WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
HAROLD P. O'CONNELL, Judge, presiding.
MR. CHIEF JUSTICE SOLFISBURG DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 27, 1963.
Defendant, Joseph Odum, was found guilty of murder by a jury in the criminal court of Cook County and sentenced to a term of 35 years in the penitentiary. He brings writ of error contending that testimony of police officers was erroneously admitted as to a dying declaration of the decedent, Walter Pennegar; that evidence of another crime was improperly admitted; and that he was not found guilty beyond a reasonable doubt.
Prior to the trial, the judge conducted a lengthy preliminary hearing on the question of whether a statement made by the decedent, Pennegar, to police officers could be admitted during the trial as a dying declaration. This statement purported to identify the defendant as one of three men who came to the door of Pennegar's home, representing themselves as police officers, and shot him three times. The crime occurred about 12:30 A.M. on May 4, 1956. Pennegar died at 5:00 A.M. on that day in the operating room of Provident Hospital in the city of Chicago.
The trial judge ruled that he was convinced beyond a reasonable doubt that the statement made by the deceased was made in contemplation of death, and that it could be admitted during the trial as an exception to the hearsay rule. Evidence of the statement was accordingly permitted to go to the jury. The fundamental question involved in this appeal is whether the trial court properly admitted the statement as a dying declaration.
Although we are reluctant to disturb the ruling of the trial judge on the admissibility of a purported dying declaration (Wigmore on Evidence, sec. 1442, p. 238, 3rd ed., 1940), we cannot refuse to inquire into the circumstances surrounding the statement in this case. We therefore look to the record.
Officers Anglin and Lindsay testified that they received a call to 375 West 55th Place in Chicago about 12:30 A.M. They found Pennegar bleeding from three bullet wounds. They put him on a stretcher and took him to Provident Hospital. Anglin testified: "He (Pennegar) said Glenn and Jules Taylor and another fellow (shot him). My partner asked him was he positive those w[h]ere the men because he would probably be dying, he was in pretty bad shape." Lindsay testified: "When we entered the room I asked him what happened and he told me that three men had come in and shot him. I asked him did he know any of the persons that had shot him, and he mentioned the name Glenn. And seeing his condition, we immediately went out and got a stretcher. On the way to the hospital, we told him that it was pretty serious, the place where he was shot and we tried to question him in the car, but going through traffic we couldn't do that very well. That was my reason for attempting to question him, because of his condition."
Officer Genda testified that at the hospital: "I asked him who shot you, and he said Glenn shot me, and that Jules Otis was with him." Genda claimed to be the first officer at the hospital, and that no oxygen was being administered to Pennegar at the time. Genda was in the hospital five or ten minutes.
Sergeant Traut testified that the nurse removed the oxygen mask, and he talked to Pennegar: "I said you are hit bad, real bad, can you tell us what happened. And at that time he told me that he was shot by a Glenn and a Jules or Joseph and I couldn't get the last name, whether it was Otis or Odum or what, and I kept on: `Can you spell the last name for us?' and he was in very serious condition and he said, `I was to testify against him in a narcotics case'. At that time the nurse and doctor requested that I move away so they could treat the man. They again administered some oxygen to the man."
Sergeant Walsh testified that he talked to Pennegar, that he was on one side of Pennegar's head and Traut was on the other. He testified: "I asked him who shot him. He said a man by the name of Glenn and a man known as Jules."
Officer Parker testified that there were about 15 policemen at the hospital when he arrived. He did not have a conversation with Pennegar, but he was present when officer Younger did. Parker testified that in response to a question by Younger: "he (Pennegar) said Jules Taylor and then he said Glenn. He said something else and apparently I didn't understand it." Parker did not hear any conversation between Pennegar and anybody other than Younger.
Officer Younger arrived at the hospital with officer Parker. When he arrived there were six or eight other police officers present. He waited until Sergeant Traut had finished his conversation and moved back away from Pennegar, and then he moved beside Pennegar and had a conversation. Younger testified: "I told him I was a police officer assigned to the 5th District. I said, `What happened to you?' He said, `It looks like they've got me.'" Younger also testified, in response to a question on what else Pennegar said: "And he said `Glen'. Then he said some other things that I couldn't hear. And I moved in closer to his mouth and I heard him say `I'm going' after which the nurse, Miss Bailey, asked me if I would mind stepping back. Before I stepped back, however, he told me, he said, `I'm going to appear against one of them in a narcotics case.'"
The discrepancies already apparent in the statement relayed by the seven police officers indicate the need for the safeguards which the law has placed about dying declarations. No two witnesses of the extraordinarily large ...