WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
DAVID A. CANEL, Judge, presiding.
MR. JUSTICE SOLFISBURG DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 19, 1965.
The defendants, Allen Golson and William Perkins, together with one George Wilson, were jointly indicted for the murder of John McAuliffe, and in another indictment for the murder of Benedetto Spizzirri. Wilson pleaded guilty to both indictments and was sentenced to death. His conviction was affirmed in People v. Wilson, 29 Ill.2d 82. The defendants, Golson and Perkins, were tried jointly by jury on each indictment. At the first trial, on the indictment charging them with the murder of McAuliffe, they were found guilty and Golson was sentenced to the penitentiary for a term of 50 years and Perkins was sentenced to life imprisonment. On the second trial, on the indictment charging the murder of Spizzirri, each defendant was found guilty and each was sentenced to the penitentiary for a term of 199 years. These 199-year sentences were not to commence until the expiration of the imprisonment under the sentences imposed at the first trial. We issued writs of error to review the judgments of conviction in both trials and the writs of error have been consolidated.
One of the claims advanced by defendants is that the court erred in admitting in evidence confessions allegedly obtained by improper means. Golson did not move to suppress his confession at the first trial, and therefore its admissibility at the first trial is not in issue. But Perkins filed a motion to suppress certain confessions on the ground that they were obtained by police brutality. At the hearing on Perkins' motion to suppress, Perkins testified that he and Wilson were arrested between 8 and 9 o'clock on the evening of March 18, 1960, and were taken to police headquarters where he was interrogated by police captain Pape. According to Perkins, Pape told him that he already knew everything about the murder and that he had to have a confession quick. Perkins testified that Pape beat him in the stomach and around the heart and that an unidentified person hit him on the back of his neck. These beatings lasted for approximately 15 minutes, after which he was taken into an adjoining room where Wilson was being held. He testified that between midnight and 1:00 the following morning he was taken to the State's Attorney's office where he was further questioned and that at about 2:30 in the morning he made a statement because he was in fear of further bodily harm. About 15 minutes later he made a joint statement with Wilson. On the morning of March 19 he was taken to a doctor for examination. He told the doctor that he was bruised under his heart and the doctor examined him in that area. On the morning of March 21 he was taken to the State's Attorney's office where he signed a joint confession with Golson and Wilson. He had not talked to an attorney at any time until after this joint confession was given. On cross-examination he testified that after the beating he told Pape he would talk and that he then told Pape that Wilson had done the actual shooting. He testified that 20 or 30 minutes after the beating he told the police all of the details of what happened on the night of the crimes. When he was examined by the doctor he did not tell him of pain anywhere other than under his heart.
In rebuttal the State called Captain Pape who testified that Perkins voluntarily confessed that he, Golson and Perkins had stolen some mail sacks and that two postal inspectors had been shot by Wilson when the inspectors apprehended the three men a short distance from the scene of the theft. Pape testified that neither he nor anyone in his presence had struck Perkins. Pape testified that police officers Steiner and O'Malley, and postal inspector Dunne were present at his interrogation of Perkins. All of these persons testified at the hearing and confirmed Pape's testimony that no violence had been used.
The doctor who had examined Perkins testified that he had conducted a complete examination and found nothing except a pin-point tenderness just below the left breast.
Two police officers testified that they had also been with Perkins during his confinement in the police station on the night of March 18, and that neither they nor anyone in their presence had struck Perkins. An assistant State's Attorney testified that in the early morning of March 19 he took the statements from Perkins and that he took one statement from him on the morning of March 21. At the second trial no evidence was heard on Perkin's motion to suppress his confession and there was no indication that there was any additional evidence to offer. On the basis of the evidence heard on the motion at the first trial the court denied Perkins's motion to suppress at the second trial.
The question of the admissibility of a confession is for the trial court to decide and the court is not required to be convinced of its voluntary character beyond a reasonable doubt. The decision of the trial judge will not be disturbed unless manifestly erroneous. The great weight of the evidence showed that there was no force exerted to obtain Perkins's confessions and it is clear that there was no prolonged detention and questioning. In People v. Wilson, 29 Ill.2d 82, where Wilson alleged that he was beaten by Capt. Pape, we held that the trial judge did not err in ruling that his confessions were voluntary. In our opinion the trial judge did not err in ruling in the present case that Perkins's confessions were voluntary.
Defendant Perkins also argues that his confessions were inadmissible because the State did not call all of the witnesses who were present at the time his confessions were made. The evidence showed that when Perkins made his statements in the early morning of March 19, three persons were present who did not testify at the hearing and also showed that on March 21, when he signed his joint confession with the other two defendants, a detective and a court reporter were present who did not testify at the hearing. The rule is well settled that all material witnesses must testify at a hearing to determine whether a confession is voluntary. However, in People v. Freeman, 25 Ill.2d 88, where the State did not call certain witnesses who were present at the time a confession was signed, we held that where there was no claim of coercion at the time a written confession was executed, but only the claim by the defendant that he was in fear of further beatings, the State was not required to call all of the witnesses present at the time the defendant signed the confession. (See also People v. Joe, 31 Ill.2d 220, 226; People v. Sims, 21 Ill.2d 425, 433.) The ruling in these cases is applicable here. There is no claim of coercion at the time Perkins signed the confession and the State was not required to call all of the witnesses who were present at the time of the signing.
Both defendants contend that their confessions were inadmissible on the first trial because they were obtained while they were in police custody without the assistance of counsel. The defendants rely on Escobedo v. Illinois, 378 U.S. 478; 84 S.Ct. 1758, 12 L.ed.2d 977. The defendants concede that in the present case they did not request counsel. In People v. Hartgraves, 31 Ill.2d 375, we held that in the absence of evidence of improper conduct by the authorities a confession is admissible even though obtained in the absence of counsel where the accused has made no request for counsel, and we further held that the authorities were not under a duty to advise an accused of his right to counsel and his right to remain silent. Our holding in the Hartgraves case is applicable here and we find no error in the admission of the confessions.
Another claim advanced by each defendant is that the court erred in denying a petition for a change of venue. The record shows that the petition for a change of venue was not made until after the court had denied a motion by both defendants to quash the indictment, partially denied their motion for a bill of particulars, and had denied their motion for a continuance to avoid the effect of alleged adverse newspaper publicity. In addition, the court had previously denied Perkins's motion to suppress his confession. In People v. Wilson, 29 Ill.2d 82, we reiterated the well settled rule that petition for a change of venue after the court has ruled on any matter going to the merits of the case comes too late. There was no error in the denial of the petition for a change of venue in the present case.
Each defendant contends that the first judgment of conviction must be reversed because of an instruction given by the court over the defendants' objection. A determination of this question requires a summary of the evidence. From the joint statement of March 21 signed by Perkins, Golson and Wilson, the following facts appear: About two weeks before the murders Wilson had bought a gun and shortly before the crimes Wilson, in the company of Perkins and Golson, bought a clip for the gun. On the night of the crimes the 3 men set out in a car jointly owned by Perkins and Wilson with the intention of stealing from automobiles. Wilson put the gun under the dashboard. They did not find any autos to rob and drove around looking for something else to steal. One of the men said that he had seen some boxes on a loading dock and, after circling the dock three times in the car they stopped and Wilson and Golson each took a mail sack from the dock and placed them in the car. They had only driven a short distance from the dock when two postal inspectors drove up beside them and ordered them to stop. One of the inspectors was armed with a gun. The inspectors looked in the back seat of the car and saw the mail sacks and told the three men to get out. They leaned them up against a railing and searched them, following which the three men and the two postal inspectors got into the inspectors' car and drove around the corner where they stopped. One of the inspectors asked Wilson to get out of the car and help him start Wilson's car. When Wilson got into his car he retrieved the gun from its hiding place under the dashboard and hid it on his person. He helped the inspector move the mail bags into the inspectors' car and then got in the back seat of the inspectors' car with the other two defendants. According to Perkins he then heard a click and saw that Wilson had the gun in his hand. Perkins said "No", but Wilson started shooting. According to Golson, when he heard the gun click he said to Wilson, "Please don't do this. Let him take us to jail." In the statement Wilson said that he raised the gun and pulled the slide back so as to cock it and pointed the gun at the inspectors and told them to be still. One of the inspectors eased his hand out of his pocket and the other inspector turned around and hit at Wilson's gun and Wilson started shooting. After Wilson shot the two inspectors he and Perkins escaped from the scene in their car, which could be driven without keys. It does not appear from the statement how Golson escaped except that he did not leave with the other two men. Several days after the shooting Golson contacted Wilson and attempted to pawn Wilson's gun. He was unsuccessful but thereafter Wilson did pawn the gun.
The facts contained in the statement are corroborated by the testimony of several witnesses. While not all of these witnesses testified to the entire transaction, their evidence may be summarized as follows: At the time of the shooting the witnesses saw a white man holding a gun on three colored men, identified as the defendants and Wilson. Wilson and one of the men got into Wilson's car and later the two white men took mail sacks out of Wilson's car and placed them in the inspectors' car. The two white men then put the three defendants in the back seat of their car and they got into the front seat. One of the witnesses heard gunfire and saw two of the men run to Wilson's car and another man run to a bus. Two police officers testified that they arrived at the scene shortly after the shooting and found both inspectors fatally wounded in the car. They also found mail sacks in the inspectors' car. One of the officers found a piece of paper with Wilson's license number written on it and another officer found Wilson's car keys in the pocket of one of the inspectors. One of the officers retrieved the gun from the pawn shop where Wilson said he had pawned it, and it was established that this was the gun that had been used by Wilson.
The case against Perkins and Golson, neither of whom had fired the shots that killed the two inspectors, was based upon the theory that the three men had conspired together to commit an unlawful act and that all of the conspirators were equally guilty of the murders which occurred during this act. This theory was based upon the doctrine commonly referred to as felony-murder, which has been defined as follows: "Where the unlawful act agreed to be done is dangerous or homicidal in character, or if its accomplishment will necessarily or probably require the use of force and violence which may result in unlawfully taking the life of another, every party to such agreement will be ...