Writ of error to the Criminal Court of Cook County; the Hon.
JOHN GUTKNECHT, Judge, presiding. Affirmed.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT.
Rehearing denied November 9, 1964.
Defendant was found guilty of murder in a jury trial and sentenced to the penitentiary for a term of 16 to 25 years. The Supreme Court transferred his appeal to this Court. Defendant seeks reversal on the grounds that (1) the evidence was insufficient to establish guilt beyond a reasonable doubt "in that the State failed to sustain the burden of proving the killing was not in self defense"; and (2) that the court erred in refusing certain instructions tendered by the defendant.
To pass upon these contentions, an analysis of the evidence is required. Frank Slavik, bartender at the Golden Lantern Tavern, 4519 S. Harlem Avenue, testified that on May 27, 1962 the defendant and the deceased, Alexander Hardie, Jr., entered the tavern at about 9 p.m. After about a half hour, during which time they consumed two glasses of beer, Hardie left and defendant followed five minutes later.
Matthew Padgen, owner of the Hickory Gardens, a tavern located next door to the Golden Lantern, testified that the defendant and deceased entered his tavern at about 9:30 p.m., had two glasses of beer each and stayed about a half hour. They left together and entered a brown Nash Rambler station wagon that was parked in front of the tavern. He jotted down the license number of the car. At about 11:45 p.m. defendant returned alone and asked if his partner had come back. Upon being told that he had not, defendant turned and walked out.
Robert H. Brownell, and his partner Burton Stieg, police officers of the Village of Lyons, shortly after midnight, while patroling in their police vehicle, came upon the body of the deceased, still warm, lying in Hass Avenue between Oakwood and 40th. This area is sparsely inhabited. There is a forest preserve on the west side of the street and on the east side a tavern, catering "house" and further "up" north there are a few new apartment houses. A Stickney police ambulance was called and the body was taken to a hospital where deceased was pronounced dead. There were two bullet holes in the chest. In the deceased's clothes the police found a key ring with some car keys and a veteran's license identity tag. There were also found some small pills. These, upon examination, consisted of two pills containing a barbiturate acid commonly referred to as a hypnotic drug and six scored tablets found to be an amphetamine, which is commonly referred to as a stimulant drug. The pills were nonnarcotic.
Officer Raymond Dus of the Stickney police, who responded to the call for an ambulance, and who removed the body to the hospital, testified that he looked for and found deceased's car in front of the Hickory Gardens Tavern. He spoke to some of the "citizens," then called the Lyons police and with them proceeded to defendant's home. Officer Dus knew the defendant prior to the date of the occurrence. Defendant's "yellow and brown" Nash Rambler was found parked in front of his home. He was requested to accompany the officers, after the police had searched the car with his permission. An expended bullet shell was found immediately behind the front seat on the floor of the car and there were blood stains on the back seat. When confronted with Padgen and Slavik at the tavern sites, defendant denied being in the taverns that night or having seen them. Later, at the Lyons police station, defendant denied knowing the deceased. Upon being told that the card of Alexander Hardie was found in his wallet, he stated that it was a reference to a girl who was married and that he used the name so as to avoid getting her into trouble. He told a story of his activities for the day and evening and said he got home at 1:30 a.m. This story eliminated any presence in the taverns or being in the company of the deceased. He explained the presence of blood in the car as coming from a cut finger he got helping his father that day with some concrete work. The cartridge shell, he said, was the result of "shooting with it, with a friend in the boondocks." During the questioning he asked and was allowed to talk to officer Dus alone and shortly thereafter defendant made a statement which was reduced to writing.
In this statement the defendant said that he was to meet the deceased Hardie by appointment at the tavern on Harlem Avenue. When he got there Hardie had not arrived. He went to the adjoining tavern still seeking him. As he came out of the second tavern Hardie arrived. Hardie asked about "the tires" and he said he didn't have them with him. At Hardie's request they re-entered the Hickory Gardens and "then got into my car and drove for a short way" into the forest preserve. "He already had the gun which I gave him in Summit, Illinois." Hardie then told defendant to drive some distance and stop. Hardie then said "You lied to me, you haven't got the tires, the money, you haven't got `s t.'" Hardie told him to get out of the car and started to open the door on his side. Pointing the gun at him Hardie said "No tires, no money, no car, no you." "Then I struggled for the gun and the gun went off twice. I put the car in reverse and he was leaning against the door and he fell out." Defendant then drove off. The police officers went to defendant's home and found the gun between the mattress and box spring of his bed.
At 10:50 a.m. defendant made another written statement under interrogation by an assistant state's attorney. In this statement he said he met the deceased about three and a half months previously in a tavern on Harlem Avenue. They became chums and he disclosed to the deceased that he had recently been released from the penitentiary. The deceased thereafter began to blackmail him by threatening to expose his penal record to his employer. Defendant, over the period, had given the deceased about 40 tires costing approximately $1000 purchased through his father's credit card. He had also given Hardie about $200 in currency which he had saved up from his earnings. On May 27, 1962 he met Hardie in front of the tavern "in Summit." Hardie asked for the gun and after receiving it asked where the tires were. He told Hardie he had them but could not give them to him. He said he lied. Just before they left the tavern Hardie showed him two pills and asked if he was willing to sell "these." When defendant refused the deceased got "salty," cursed him and said they were going for a ride.
They drove off in defendant's car leaving Hardie's car at the tavern. After driving into the forest preserve, "all he did was bitch and moan and gripe and told me what I was and told me what his wife was." Defendant then took the wheel and drove around within the Lyons vicinity. Hardie was arguing and trying to talk defendant into selling the pills. After some period of driving, Hardie told defendant to stop the car. He pointed the gun at him and told him to get out. The deceased screamed and stuck it in defendant's face. "His door was open when he stuck the gun in my face. I grabbed for it." He thought he got the gun. "I was sitting on top of him. My weight was on his body. When I pushed up on the gun, I put my weight on his body and then I remember hearing two shots." Defendant then drove off causing the deceased to fall out. He put the gun between the mattress and bed spring of his bed when he got home.
Defendant did not take the stand in his defense.
In contending that his guilt was not proven beyond a reasonable doubt, defendant argues that under the Illinois Criminal Code, c 38, § 3-2(a), (b), and § 7-14 (Ill Rev Stats 1961), the State must assume the burden of proving not only that defendant committed homicide but the additional burden of establishing beyond a reasonable doubt that the killing was not in self defense. Defendant's argument comes down to but one proposition, namely, "that no one can tell which of the two was the aggressor," and consequently, that the People's case which was one of "mere circumstantial evidence," failed to establish defendant's guilt "so thoroughly as to exclude every other reasonable hypothesis," including the one that he killed in self defense. People v. Willson, 401 Ill. 68, 81 N.E.2d 485 (1948); People v. Ahrling, 279 Ill. 70, 116 N.E. 764 (1917).
The statutory provisions relied upon by the defendant read as follows (c 38, § 3-2(a, (b), and § ...