Writ of error to the Criminal Court of Cook County; the Hon.
ERWIN J. HASTEN, Judge, presiding. Judgment affirmed.
MR. PRESIDING JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT. Rehearing denied May 10, 1965.
This is an appeal from the conviction of Larry Wheeler for the murder of James Boleyn. The defendant was tried before a jury which found him guilty as charged in the indictment and fixed his sentence at imprisonment in the Illinois State Penitentiary for a term of twenty-five years. The trial court denied the defendant's post-trial motions and pronounced sentence. The Illinois Supreme Court issued its writ of error, appointed counsel to represent the indigent defendant in connection with the writ and subsequently transferred the appeal to this court.
The defendant presents the following charges of error: (1) that the evidence was insufficient to establish his guilt beyond a reasonable doubt; (2) that the court improperly excluded certain testimony concerning the decedent's reputation for violence; (3) that the court improperly gave certain of the State's instructions and improperly refused to give the defendant's instruction on involuntary manslaughter. The defendant asks this court, on the basis of these errors, to reverse the conviction and discharge the defendant or to find the defendant guilty of manslaughter and order him to be discharged because he has already served a sufficient penalty for that crime, or to grant a new trial to determine the question of the defendant's guilt or innocence of manslaughter.
Because the evidence is largely conflicting, we summarize the pertinent testimony of each of the principal witnesses. The State's chief witness, John Whitsett, testified that on the evening of November 1, 1959, when the events in question took place, he and the decedent were tending bar at Bill McGee's Tavern, located at 1764 North Larabee in Chicago. The defendant and his girl friend came into the tavern at about 8:30 or 9:00 p.m. and the decedent and Whitsett served them drinks until shortly before midnight, when the defendant's girl friend knocked an empty bottle off the bar. As he picked up the bottle, Whitsett observed the decedent slapping the defendant with his hands. After several customers separated the decedent and defendant, the defendant and his girl friend left the tavern on the decedent's orders. In Whitsett's opinion, the defendant was not intoxicated at that time.
About two hours later, the defendant and his girl friend returned to the tavern. As the defendant walked toward the back of the bar, the decedent came out from behind the bar toward the defendant carrying an eighteen-inch piece of insulated electrical cable which was ordinarily kept behind the bar. As the decedent approached him, the defendant said, "Don't hit me. I didn't come back to cause any trouble. I just came back to talk to you." Though Whitsett did not hear what else was said, he saw the decedent and defendant talk for a while and then shake hands. Then the defendant and his girl friend sat at the bar and the decedent ordered Whitsett to serve them, which he did. After a few minutes, however, Whitsett saw the decedent hitting the defendant on the side of the head with his fist. There was a scuffle and the decedent took the defendant by the neck and the seat of his pants, pushed him to the door and threw him out. Then the decedent ordered the defendant's girl friend to leave. Whitsett said that at the time of the scuffle, the decedent had nothing in his hands. He testified further that as the decedent was returning to the bar he (Whitsett) heard a voice outside the tavern; he could not hear what was said. The decedent then ran out the door and Whitsett heard four or five shots immediately thereafter. When Whitsett went outside he found the decedent lying on the sidewalk just outside the door and he saw a man, who he believed to be the defendant, running away carrying a gun. Whitsett said that he accompanied a police officer, Roland Harvey, in search of the defendant whom he had known for seventeen months. They went to Tennessee Buck's Tavern, where only the officer went inside; after the officer came out again, the bartender came out and gave the officer a gun. Some time later, Whitsett saw the defendant and observed that there was blood running down his head and that there were blood stains on his shirt.
Martin Curran, who was called by the State, testified that he went to Bill McGee's tavern at about 11:00 or 11:30 on the night in question. He said that the decedent "booted" the defendant out of the tavern with his foot and told him to stay out and not come back. Curran said he was standing at the bar at the time and after this incident he turned back to the bar to order a drink when he heard shots. He looked out the tavern window and saw a man with a gun. He went out the tavern door, saw the decedent lying on the ground two or three feet from the door; Curran saw nothing in the decedent's hand. Curran said that he saw a man running away and that he unsuccessfully chased him.
On recross-examination, Curran further testified that his visit to the tavern on the night in question was the third occasion on which he had been in the tavern. When he was asked if he had ever seen the decedent put a man out of the tavern like he did on the night in question, the State objected on the ground that the defendant could only ask about the decedent's reputation; the court sustained the objection and the defendant withdrew the question. Curran was then asked if the decedent was in the habit of putting people out of the tavern; the State objected and the court sustained the objection. The questioning proceeded as follows:
Q. Do you know people in the community generally where this tavern is located?
Q. Are you acquainted at all with other people who frequent this tavern you went into?
A. Just maybe a couple of my friends that I have went in with a couple of times or just by myself.
Q. Based on this acquaintanceship, do you know the deceased's reputation as to his peacefulness
At this point the State objected on the ground that the foundation for the witness' testimony as to the decedent's reputation was insufficient. The court sustained the objection and the defendant withdrew the question.
Police Officer Harvey, who was also called by the State, said that he arrived at the tavern about 2:30 in the morning. He found the decedent lying on the sidewalk. After speaking to the other bartender, Whitsett, they left the scene to search for the defendant. They first went to an apartment building where Whitsett said the defendant was living, but since the building was large and they did not know which apartment was the defendant's, they next proceeded to Tennessee Buck's Tavern where they had a conversation with the bartender, Gordon Williams. In the company of Whitsett and Williams, the officer went back to the defendant's apartment building where he saw a man walking out of the building. The officer called out "Larry" and when the man, whom he identified as the defendant, answered "yes," he put him under arrest. The officer further testified that he had obtained a gun at Tennessee Buck's Tavern and when he asked the defendant "if this was the gun he had left at Tennessee Buck's" the defendant admitted that it was. The officer testified: "I then asked him why did he shoot James Boleyn. He says `I don't know ...