Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. HERBERT R. FRIEDLUND, Judge, presiding.
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
Defendant, Jackie M. Dockery, impleaded, after a jury trial, was found guilty of the crime of voluntary manslaughter and was sentenced to the penitentiary for a term of 4 to 10 years. On appeal, he contends that his constitutional rights were violated, and that he was deprived of a fair trial by the deliberate misconduct of the State's Attorney. This appeal was transferred by the Supreme Court to this court.
The record shows that on June 1, 1964, in response to a telephone call, two police officers found the dead body of William Allenbaugh in a rear yard, lying face up, with the pants pulled down below the knees and the shirt pulled up under the arms. A coroner's pathologist, who had performed an autopsy on the body, testified as to finding multiple abrasions of the face and chest and the extremities. An internal examination revealed lacerations and contusions of the internal organs and fractures of the ribs from the third to the ninth. In his opinion, the cause of death was a "hemorrhage following multiple internal injuries."
The principal witness for the State was Gary Len Thompson, 16 years of age. At the time of trial, Thompson was under indictment for aiding and concealing a fugitive (defendant Dockery). He testified that he and defendant lived in a room in the Marshall Hotel in Chicago. After visiting his sister on May 31, 1964, Thompson arrived at the hotel room at about 1:00 in the morning on June 1, 1964. Defendant and Allenbaugh were seated on a couch drinking beer and wine as Thompson came in. About 2:30 or 3:00 a.m., Allenbaugh got up to go to the washroom. He fell down two or three times, and Thompson helped him into the washroom, where Allenbaugh fell over a "commode." Allenbaugh stayed in the washroom about 10 or 15 minutes and then got up and fell down again, with his pants below his knees. Defendant returned from purchasing beer, and after going through the pockets of Allenbaugh, carried him back to the couch. Defendant then threw Allenbaugh on the floor and started to beat him. He hit him on the head with a wine bottle first and then dragged Allenbaugh out to a porch, where he kicked Allenbaugh down the stairs to the second floor.
Thompson also testified, "Between the time he struck him with the wine bottle and the time he dragged him to the porch he was bleeding. He was bleeding from the head I think. Mr. Allenbaugh was lying on the couch when Jackie Dockery threw him on the floor and started to beat him. After he was on the floor, and Jackie Dockery started to hit him, he just lay there. He did not strike or provoke Jackie to strike him first. He did not strike Jackie. . . . On the back porch Mr. Allenbaugh started to get up and walk down the steps, then, Jackie kicked him and he fell down. He put his foot on his back and kicked and shoved him. Allenbaugh went down to the first floor. He fell down with his back stooping. Jackie Dockery or myself struck Allenbaugh on that occasion, I hit him twice before the fight. During the fight, I didn't hit him, not once. I don't know how many times Jackie Dockery struck him. . . . He struck him on the chest . . . and the side. He struck him with his feet. He did not strike him with anything other than his feet and the wine bottle. After he went down the stairs, Allenbaugh was on the first floor. Then me and Jackie went down about 30 minutes later. He was still there. So we carried him out the back. Jackie got his waist, I got one of his feet. We put him out around to the side of the building."
Thompson identified a picture of Allenbaugh's body and said, "That is how he was dressed when Jackie was striking and kicking him, with his pants down around below his knees."
Thompson further testified that he and defendant went back upstairs about 2:30 a.m. and went to bed. They arose about 8:30 and looked into the back yard and saw two or three police officers, and Allenbaugh's body was still there. Thompson and defendant dressed and went to work, and neither stopped to talk to the police officers about what happened the night before. Thompson identified a shirt as the one with which he "wiped up the blood from where he hit him on the head with the wine bottle, in the living room. Jackie used the white shirt to wipe up the blood. I wiped off some on the couch."
Thompson also testified on cross-examination that a statement he gave at the coroner's inquest that decedent "came after Jackie with a blackjack" was untrue and that Jackie had told him to say it. He admitted that he never saw a blackjack in the apartment. On redirect examination, Thompson admitted he again lied when he testified previously that he did not talk with the Assistant State's Attorneys before taking the witness stand.
Two police officers testified as to finding the body and its condition. They also described the hotel room and found blood stains on a blue shirt and a white shirt, which were introduced into evidence.
The State introduced into evidence as Exhibit 10, and read to the jury over the objections of defendant, a transcript of an oral statement made by defendant on June 4, 1964, after his arrest. A motion to suppress this statement had been made and denied before trial. At that time it was stipulated that at the time the statement was taken by the police, defendant was not advised that he had a right to counsel nor did defendant ask for counsel.
The defense witnesses included defendant's brother, Harold Dockery, who testified that on the afternoon of June 1, defendant told him he had a fight and was fired from his job. Harold called a friend of his, Eugene Hartman, who engaged defendant for construction work. Hartman testified that his business was swimming pool excavations, and he hired defendant on June 1 for an indefinite period. They commenced work the next morning at Frankfort, Illinois, digging a swimming pool. On June 2, they went to Frankfort and then to Kankakee, Illinois, where defendant was arrested.
Defendant testified that on the evening of May 31, 1964, at about eight or nine o'clock, while walking toward his home, he was introduced to decedent by two friends, and he visited with them on the street for a short time. He then returned to his apartment and later, as he left to go to his girl friend's house, he saw the decedent sitting on the steps of the building in which he lived. The decedent asked him for his apartment number, and he told him. Decedent had a work shirt, a green pair of trousers, a long beard, and was dirty. After visiting his girl friend, defendant returned and found decedent in his apartment, lying on the couch asleep. They commenced drinking, and defendant gave money to decedent to get a bottle of wine. Decedent drank wine, and defendant drank beer.
Thompson came in about two o'clock, and decedent wanted to know who Thompson was and what he was doing there. After an argument between Thompson and the decedent, defendant asked decedent to leave. "Then I asked Allenbaugh to leave again and he got up and swore at me and I got up and Mr. Allenbaugh swung at me and when he swung at me, I caught his lick and knocked him down. He had something in his hand and it looked like a blackjack. . . . After he swung at me I caught Allenbaugh's leg and knocked him down and we commenced fighting and Mr. Allenbaugh was on the floor striking, striking back at me, and I was striking at Mr. Allenbaugh to keep him from getting back up to me. I kicked him because it was to keep him from getting on me. Gary Thompson struck William Allenbaugh also. He struck him two or three times. . . . I never hit Mr. Allenbaugh with a bottle. There was broken glass around, a broken bottle, but I don't know how the bottle got broke."
After some time, Allenbaugh went to the washroom, and defendant heard something hit the floor, and he and Thompson found Allenbaugh lying on the kitchen floor. "His pants were down about his knees and his shirt was unbuttoned. . . . Mr. Allenbaugh was bleeding about his head. . . . The next thing that happened was that me and Gary took Mr. Allenbaugh up and took him to the couch. I told Gary, let's get our coats and go for a walk. We walked to the corner of Clifton and Wilson and when we came back, Mr. Allenbaugh was gone. . . . I never pushed Mr. Allenbaugh down those stairs. I did not put my foot into his chest and push him down the stairs. I did not drag Mr. Allenbaugh with Gary to the bottom of the stairs. I did not touch Mr. Allenbaugh at the bottom of the stairs."
Defendant further testified that the next morning, Thompson awakened him and said there was a man lying in the back yard. He looked out of the window and saw that it was Allenbaugh, but did not go down because there was a police officer there. There was blood around the house, and he wiped it up with shirts. He went to the home of his brother, and Harold got him a job, and he went to work. He was working in Kankakee when the police arrested ...