WRIT OF ERROR to the Circuit Court of Coles County; the Hon.
JOHN F. SPIVEY, Judge, presiding.
MR. JUSTICE HOUSE DELIVERED THE OPINION OF THE COURT:
Earl William Hanson, Billie Dean Pethtel and Dale Edward Scott were indicted for the murder of Thomas J. Shanks. A jury in the circuit court of Coles County found Hanson, herein referred to as defendant, guilty and fixed his sentence at 199 years confinement in the penitentiary. A writ of error has been issued to review his conviction.
Thomas J. Shanks and his son Raymond were partners and owners of the Shanks Packing Company in Mattoon. About 12 minutes after 6 o'clock of the morning of June 5, 1959, Raymond Shanks arrived at the office of the Packing Company and found his father slumped over his desk and groaning. His father was bleeding from wounds on the head, there was blood splattered around the room, the door of the safe was open and papers were strewn on the floor. His father was taken to the hospital where he died about 1 o'clock that afternoon. The cause of death was attributed to several severe blows on the head from a blunt instrument.
Pethtel, aged 19, testified that defendant, aged 32, is his uncle. He gave the following account of events leading to the crime. On June 3 he and defendant left Robinson to go to Chicago and look for a job. They got as far as Tuscola where they spent the evening and then went south to Mattoon the next morning. They met Scott there at a restaurant. Defendant had become acquainted with Scott when both were incarcerated at the Menard Penitentiary but Pethtel and Scott were unacquainted. Pethtel said that defendant and Scott discussed committing a robbery and Scott said to meet him later that evening. The three met at 8:30 P.M. and after riding around stopped at a restaurant in Mattoon between 12:30 and 1:00 A.M.
In this restaurant Scott and defendant discussed robbing the Shanks Packing Company where Scott worked. Pethtel agreed to go with them and they all agreed to split the proceeds of the robbery equally. They left the restaurant and drove south of Mattoon where defendant had hidden a shotgun. They got the shotgun and some gloves and drove to within 2 blocks of the packing company, parked the car, and walked to the building. Scott entered and opened the door for defendant and Pethtel. Pethtel and defendant put on butcher smocks and made masks from some shirts obtained in the building. All three waited until Shanks arrived about 10 minutes before 6:00 o'clock. When Shanks entered the building defendant pointed the shotgun at him, and Pethtel, at defendant's direction, hit Shanks slightly on the shoulder with a piece of iron pipe but not hard enough to knock him down. Defendant then took the pipe and hit Shanks on the head knocking him to the floor. The defendant took the keys to the safe from Shanks, broke the glass in the office door, entered the office and opened the safe door. The safe had a second door secured by a combination lock. Defendant made Shanks get up and open the second door to the safe. Defendant looked through the safe and the three then got away in a truck belonging to the packing company. They drove to defendant's car. Defendant and Pethtel dropped Scott at his home and then drove to Casey arriving about 7:00 A.M. where they stopped at a restaurant for coffee. They later returned to Robinson.
Scott's version of the crime was about the same as Pethtel's version. He testified that he had seen defendant a week before June 4 at which time they discussed a robbery. Scott gave defendant a shotgun he had bought for hunting rabbits and did not see him again until June 4. At that time he was driving a delivery truck for Shanks Packing Company. Defendant was with Pethtel but Scott did not know Pethtel. Defendant asked Scott if he had anything "lined up" and Scott said no. About 8:30 P.M. that evening defendant called him and he met defendant and Pethtel. His narration of events and places they went was the same as Pethtel's except that Scott stated they discussed burglarizing the packing company after they got the shotgun and not at the restaurant in Mattoon. Scott said he entered the building through a second story window and opened the door for Pethtel and defendant. He did not wear a butcher's smock or mask because he was not going to be seen by Shanks. When Shanks was about to enter the building he went to the rear of the building and opened the door for the getaway. He did not see the assault on Shanks. As the three were driving away in the truck, he heard Pethtel say to defendant, "I hope you didn't hit him too hard", and defendant reply, "I don't believe I did, but he'll have a headache when he wakes up." On cross-examination Scott admitted that he had embezzled money from Shanks and that the shotgun had been stolen.
Signed confessions by Pethtel and Scott containing the same facts to which they testified at the trial, along with a statement of defendant admitting those confessions to be 90 to 99 per cent true, were admitted in evidence. A piece of paper with a heelprint found at the scene of the crime was admitted in evidence after it was shown that the size, style and a peculiarity in the heel of defendant's shoe corresponded exactly with the print on the paper.
Defendant gave the following account of his actions during the time in question. He testified that he met Scott between 1955 and 1957 when they were both serving sentences at Menard Penitentiary. He said he was in Mattoon about two weeks before June 4 standing on the street when Scott drove past him and recognized him. They had a general conversation and Scott said he wanted to commit a robbery. Scott also talked about selling his car and defendant was interested in buying a car. A week later he went to the packing company to see Scott concerning the purchase of the car. At quitting time they went to where Scott lived. Scott brought out a shotgun and the two left in Scott's car. Scott drove just south of Mattoon where he stopped and told defendant to put the shotgun in the weeds.
He said that on June 3 he saw his nephew, Billie Dean Pethtel, in Robinson and his nephew asked him if he would take him to Chicago to look for a job. They drove to Tuscola where they spent the night. The next morning defendant decided to see a friend near Arcola, which he did, and they then drove south to Mattoon. Defendant happened to see Scott and told Pethtel that Scott could tell him if there was a job in Mattoon. Defendant told Scott that Pethtel wanted a job and Scott said "come back tonight and I will let you in on a job." Defendant said he wanted no part of it, and he and Pethtel left for Robinson. Later that day Pethtel decided to go to Chicago again and defendant agreed to take him. They left Robinson about 7:00 P.M. and started for Chicago via Mattoon. On the way Pethtel asked defendant about Scott and defendant said he had met him at Menard Penitentiary and that Scott was a "stool pigeon". Pethtel insisted on seeing Scott, so defendant agreed to stop and call him, although he warned his nephew that he would get into trouble with Scott. The three of them drove around finally stopping at the restaurant about 12:30 or 1:00 A.M.
He further testified that as they were leaving the restaurant, Scott asked him if he had taken the shotgun. Defendant said no and Scott said he could not find it. Defendant then said "I will go help you find it." On the way to the weeded area to find the shotgun, defendant asked Pethtel what he was going to do and Pethtel said he was going to hitch-hike home. Defendant then told Pethtel what type of man Scott was, that the shotgun was stolen and that Scott planned a robbery. Defendant found the shotgun for Scott where it had been hidden just south of Mattoon. Pethtel stayed with Scott and defendant left in his car for Chicago. He drove to a point north of Tuscola where he slept in his car from 3:00 o'clock A.M. until 6:00 o'clock A.M. When he awoke he decided the weekend would not be a good time to go to Chicago and started south again. He stopped at a restaurant in Tuscola for breakfast at 6:00 A.M. He drove east to Paris and then south to Robinson. Later that day he saw Pethtel in Robinson. He asked Pethtel what he did the night before and Pethtel said he did not do anything. On June 10 defendant was arrested as he left his home.
A waitress at the restaurant in Tuscola corroborated defendant's alibi when she testified that defendant ate breakfast there about 6 o'clock A.M. on the morning of June 5. His alibi was weakened, however, when the waitress at the restaurant in Casey corroborated Pethtel's testimony that he and defendant had coffee there at 7:00 o'clock A.M. on June 5.
It is first argued that the court erred in admitting the confessions of Pethtel and Scott in evidence. The record shows that on the evening of June 12 defendant was placed in the presence of Scott and Pethtel. Scott's written confession was shown to him page by page and he acknowledged audibly that he had initialed each page and signed the confession and that the confession was true. The same procedure was followed with respect to Pethtel. The confessions were then read to defendant. A court reporter made notes on defendant's response, the material part of which is as follows:
"Q. Do you want to confirm or deny any ...