Writ of error to the Circuit Court, Criminal Division, of Cook
County; the Hon. WALTER P. DAHL, Judge, presiding. Affirmed.
MR. PRESIDING JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.
Daniel Lofton was convicted in a jury trial of the murder of Catherine Hamb and was sentenced to the penitentiary for a minimum of 14 and a maximum of 25 years. He appeals, alleging that the evidence did not prove him guilty beyond a reasonable doubt and that the argument of the prosecutor was prejudicial.
Daniel Lofton was a married man with three children and at the time of the trial was 29 years of age. He had known Catherine Hamb a long time and had sexual relations with her for several years. He admits that on the night of the shooting he was in Catherine Hamb's apartment and that he fired the gun which inflicted the fatal wound upon her. The conflict in the evidence concerns the shooting itself and the events directly preceding it.
The evidence presented by the State indicated that on the night of April 27, 1962, Lofton arrived at the apartment building in which Catherine Hamb lived some time between 10:30 and a quarter to 11:00. A neighbor who lived close by testified she saw Lofton going toward the basement apartment of her neighbor, Rosa Thomas, and that she saw him take a gun from one pocket and transfer it to another. At about 11:00 p.m. she heard a pistol fired.
Mrs. Thomas testified that she had spent the evening with the deceased and left her around 10:00 p.m. At about 10:45 Lofton came to her door. He told her that he had telephoned Catherine Hamb a half-hour earlier and that she said for him to come over, but she had not let him in when he called on her. He asked Mrs. Thomas if Catherine was at home and she replied that she had seen her earlier. He said: "[S]he may be with Will." He said that he would go back and see if he could get in. Mrs. Thomas testified that while he was speaking to her he pulled something from his pocket. She could not identify it in the darkness, but she heard a clicking sound and saw him stick the object into his belt.
Mrs. Thomas went to the Hamb apartment the following morning. She found Catherine Hamb with a bullet wound in her head and in serious condition. She called the police and Miss Hamb was taken to a hospital where she remained until May 14th. She was allowed to return home but was unable to care for herself and Mrs. Thomas assisted her with her personal needs. She died on June 5th of an abcess of the brain caused by an infection which developed along the path of the bullet.
After the shooting the police instituted a search for Lofton but were unable to locate him for more than a month. On May 29th he was arrested in the home of one Maggie Williamson, where he was found hiding in a bedroom closet on the second floor. He first denied shooting Catherine Hamb but later admitted that he had shot her and that he had thrown the gun into Lake Michigan. He was taken to the lake and he showed the police the place where the gun had been thrown.
Lofton, who testified in his own behalf, was the only witness to recount the purported circumstances of the shooting itself. He admitted carrying on an affair with the deceased for seven or eight years but stated that he had not seen her during the four months prior to the shooting. He and his wife were working at a small tavern which was owned by his mother. He stated that on the evening of April 27th Catherine Hamb called him at the tavern and told him that she wanted to see him. He left the tavern, drove his wife home, got his pistol from his home and then went on to see Miss Hamb. He said he took his pistol with him because he intended to return to the tavern and would be bringing money home. After he parked his car in front of Miss Hamb's apartment, he took the gun, which he said was a .38 or a .32 "automatic revolver," from the seat of the car on which it was lying and placed it in his belt. He rang her bell but was unable to gain entrance and then went to see Rosa Thomas to make inquiries. He said he had the gun in his belt but he denied pulling it out at any time. He went back to the apartment, knocked on the back door, and Catherine admitted him.
She sat down in one of the kitchen chairs and he stood near her, the gun still in his belt. According to Lofton she asked why he had not come to see her of late and he told her that the tavern was occupying all of his time and that he would be unable to see her in the future. As he was saying this he started to sit down and, finding that the gun in his belt made this uncomfortable, took it from his belt intending to put it in his pocket. At that moment Catherine jumped up from her chair and as she did so her left hand struck the gun causing it to discharge. He said he had his finger on the trigger but that he did not pull it. Lofton stated that he became frightened and fled, drove around for some time and then went to the lake front and threw the gun away. He said that he stopped at a phone booth in the area and notified the police of the shooting but did not give his name and did not call a doctor. After this he returned to the tavern.
His explanation for not going to the police was simply that he was frightened and unsure of what he should do. He explained that the "Will" he had mentioned to Mrs. Thomas was another boyfriend of Catherine Hamb's. He admitted hiding in Maggie Williamson's apartment and his explanation for being in the closet was that he slept there.
The State introduced rebuttal evidence showing that Lofton had seen the deceased in the months just prior to the shooting. A police officer testified that Lofton never told them that the deceased's hand struck his gun prior to its going off; what he had told them was that she had raised her hand in front of her face just before she was shot.
It is the defendant's contention that Catherine Hamb died as the result of an accident and that he should not be held guilty of murder because there is no evidence that he intended to inflict great bodily harm upon her or to kill her. He points out that he and the deceased were friends, that he had no reason for killing her and no motive was proved for his doing so; that his conduct before the shooting is inconsistent with an intention to kill her as is his firing the pistol but once, and that the coroner's physician, who testified that her left index finger had an old scar an inch and a half long and that the bullet in her head traveled downward and backward, corroborated his version of what occurred. He argues that under the evidence there is a reasonable hypothesis of innocence; that he was the only eyewitness to the shooting and his direct testimony that it was an accident must be accepted over the State's circumstantial evidence.
A conviction based on circumstantial evidence may be upheld where the proof of circumstances leads on the whole to a satisfactory conclusion and produces a reasonable and moral certainty that the defendant committed the crime as charged. People v. Bernette, 30 Ill.2d 359, 197 N.E.2d 436. It is not necessary that the jury be convinced beyond a reasonable doubt of each link in the chain of proof if the whole convinces of guilt beyond a reasonable doubt. People v. Franklin, 341 Ill. 499, 173 NE 607.
The jury could have reasonably believed that outside of Rosa Thomas' apartment Lofton moved his gun from one pocket to another; that in the doorway of that apartment he again took it out, did something to it which made it click and placed it in his belt; that in doing this he was readying the weapon with the intent of using it and that he went to Catherine Hamb's apartment carrying a loaded gun ready to be fired. From Lofton's own testimony we know that he was holding the gun with his finger on the trigger at the time she was shot, and that after the shot had been fired he fled and disposed of the gun in a place where there was not much chance of its ever being recovered. While flight from the scene of a crime does not, in and of itself, prove guilt, if it is of such a character that it indicates an attempt to avoid capture and thus shows a consciousness of guilt on the part of the defendant, it may be considered with all the other evidence in the case as a factor tending to show guilt. People v. Haygood, 60 Ill. App.2d 70, 208 N.E.2d 373; People v. Brown, 27 Ill.2d 23, 187 N.E.2d 728; People v. Weber, 401 Ill. 584, 83 N.E.2d 297. The jury could well infer an intent to avoid capture and a consciousness of guilt from the defendant's flight and from his remaining in hiding until arrested. His testimony that he anonymously called the police from ...