APPEAL from the Circuit Court of Sangamon County; the Hon.
CREEL DOUGLASS, Judge, presiding.
MR. CHIEF JUSTICE KLINGBIEL DELIVERED THE OPINION OF THE COURT:
The defendant, George Willie Hobbs, was convicted of murder on a jury verdict in the circuit court of Sangamon County. The verdict did not provide for the death penalty and the court sentenced him to the penitentiary for a term of 25 to 50 years.
In the early hours of November 21, 1964, on a secluded lane a short distance southwest of Decatur, Bertha Mae Scott was shot and killed. Defendant admits firing the shots but contends he did so in self-defense. On the day previous he had started drinking about 4:00 o'clock in the afternoon in anticipation of a weekend visit from his friend, Ronnie Worth, his wife and son. On the arrival of the Worths about 11:00 P.M., dinner was served by defendant's wife and all parties continued to drink beer and whiskey until about 2:00 A.M. when defendant and Worth left to find some "women". They stopped first at the house of an acquaintance of defendant's, and though she was unwilling to accompany them she was willing to accommodate defendant in her apartment, and did so, having intercourse with defendant while Worth waited outside in the car for about 45 minutes. On the way to a tavern they then met a friend of defendant's who offered the services of his girl friend for $7, the girl friend being Bertha Scott, the decedent. Worth expressed an interest in this proposition, the money was paid and the tryst took place in the back seat of the car behind the Pow Wow Club while defendant continued his drinking inside. From this point on there is a variance in the testimony of defendant and his friend, Worth.
Worth testified that after he had intercourse with Bertha in the back seat, he went to sleep and that when he awoke, about 3:30 or 4:00, the car was moving, defendant was driving and Bertha was in the front seat; that they stopped on a lonely lane and that from the conversation between defendant and Bertha it was apparent they already had had intercourse and were now arguing whether her fee should be paid before or after a proposed second time; that defendant asked her out of the car and the next thing Worth heard was a shot; that looking out the back window he saw defendant shooting Bertha; that as he got out of the car defendant was still shooting and Bertha was on the ground; that he did not see a knife in Bertha's hand or on the ground; that defendant dragged her body into a depression off the lane, picked up the empty cartridge cases, went through her purse, took her money and, on the way home, threw her purse, rings, watch and the cartridge cases into the river and some of her clothing into a gulley.
Defendant's story is that he had started the previous day with $300, and that when he came out of the Pow Wow Club he had $195 left and carried it in his coat pocket; that at this time Worth and Bertha were still engaged in sexual relationships in the back seat and defendant suggested they should go somewhere else as the police might come along; that he drove, and his friend and Bertha remained in the back seat; that when he arrived at the country lane he kept the motor running and the heater on, got hot, took his coat off, threw it over the back of the front seat, bent over the steering wheel and fell asleep; that when he awoke at about 6:50 A.M., the motor had been turned off, Bertha and Worth were still in the back seat, both asleep, and his $195 was gone; that he awakened them, they denied having his money, he looked under the seat, got out, asked Bertha out, demanded to look into her purse, she refused; that finally she did open her purse, presumably to let him look, but instead she drew out a knife about 8 inches long; he retreated, she struck at him, he took out his pistol and shot her; that he must have panicked as he didn't recall what happened after the first three shots until he saw Worth standing by the car with Bertha on the ground about five feet from where he, the defendant, was standing; that the purse and knife were on the ground beside her; that he examined the pocketbook and found his $195; that he and Worth picked up the exploded shell cases and at Worth's suggestion he took the jewelry and watch off Bertha and dragged her off the lane into a depression; that on the way home he threw the knife and purse in the river, put the gun in the glove compartment and Worth threw the watch and rings away; that when they arrived at defendant's house his wife made breakfast, Worth went to bed, and he related the night's events to his wife; she didn't believe him so they awakened Worth and on his confirmation defendant's wife went into hysterics; that the next day Worth and his family returned to Missouri and that night defendant and his wife drove to Lake Decatur and she threw the gun in the lake.
No one informed the police, but three days later the body was discovered by a hunter. Defendant was picked up and questioned because he was known to have been with decedent on the night in question. He gave police several different versions of his activities on that night, all of which differed substantially from his trial testimony.
Defendant contends that he was not proved guilty beyond a reasonable doubt; that the trial court erred in giving a particular instruction on motive and in denying one offered by him; that the admission of a photograph of decedent in evidence was prejudicial; that he was deprived of his constitutional right to trial by jury in that all persons expressing conscientious scruples against the death penalty were excluded from the jury.
Defendant argues that his self-defense story is much more believable than Worth's version of the affiair; that a dispute with a prostitute over a $7 fee with $195 in his pocket is preposterous; that a more likely explanation of the events leading to the shooting is defendant's claim that decedent stole his money and that, on being confronted with discovery, she attacked; that the evidence of Worth that a desire for intercourse with Bertha led to the shooting when defendant had been drinking for hours, had already had intercourse with one woman and possibly once before with Bertha, is unworthy of belief as it requires a conclusion contrary to human experience.
Defendant's version, if believed, might be considered as supporting his self-defense theory, but the credibility of the witnesses and the weight to be given their testimony are within the province of the jury, not the court. (People v. Franklin, 390 Ill. 108; People v. Langer, 384 Ill. 608.) The most that can be said is that the two versions constitute a conflict in the evidence, which fact does not of itself establish a reasonable doubt. (People v. Kelly, 8 Ill.2d 604.) Defendant's arguments as to sexual capacity and desire and the effect thereon of previous satisfaction and excessive drinking are highly speculative and not something upon which this court can rule as a matter of law. In addition, whether the argument originated over sex and price or over the money which decedent may have taken, the justification for the killing is a separate factor and we cannot say that the jury's determination thereof does not have substantial support in the record.
At the request of the State the court gave an instruction to the jury to the effect that the State is not required to prove a motive for the crime. Defendant requested and was refused an instruction to the effect "that should the evidence fail to show that the defendant had any motive this is a circumstance in favor of his innocence". Defendant argues that this was error in that failure to prove a motive other than the reason advanced by defendant would tend to support and lead to acceptance of defendant's version of the shooting, i.e., that it was done in self-defense. This is tortuous reasoning. As stated above, whether the original argument started for one cause or the other there still remains the question whether the intentional shooting was or was not excusable on the grounds of self-defense. The fact that defendant believed decedent had taken his money is not a circumstance in favor of his innocence. To so state, or imply, is to be argumentative and misleading. In effect, it predetermines an ultimate fact question which question is within the province of the jury alone. The shooting was admittedly intentional. Whether it was done in self-defense is to be determined not by what led up to the argument but whether decedent drew a knife putting defendant in fear of bodily harm sufficient to warrant his killing her. And in this theory the defendant had the benefit of and was fully protected under the instruction of the right of self-defense.
Where a deliberate criminal act is proved the State is not required to prove a motive for it, as motive is not an essential element of the crime of murder. (People v. Mangano, 375 Ill. 72.) And an instruction that is calculated to mislead the jury to understand that the law requires evidence of motive is properly refused. (People v. Enright, 256 Ill. 221.) Defendant cites cases from other jurisdictions holding that if an instruction is given that motive is not essential to be proved, the converse of such proposition must likewise be given, that failure to prove motive is a circumstance to be considered in defendant's favor. However, these cases and others we have examined appear to involve circumstantial evidence cases or cases where there is some doubt as to who committed the offense. It can be readily seen in such cases where failure to prove motive might have some bearing upon the guilt or innocence of the accused. Here, there is no doubt as to identity and such cases are not pertinent.
The photographs of which defendant complains are three pictures of the undisturbed body of decedent taken at the scene. Showing decedent lying on her back in tangled weeds and underbrush with her clothes in disarray, they do not appear to be spectacular or inflammatory such as to arouse the prejudicial emotions of the jury, and we find that the trial court did not abuse its discretion in admitting them in evidence.
Finally, defendant contends that he was deprived of his constitutionally guaranteed right of trial by jury in that 48 prospective jurors were excused for cause when in voir dire examination by the court they answered the following question affirmatively: "The crime of Murder is a capital offense. In such cases the jury may return a verdict of death. Where such verdict is returned by the jury, the Court may sentence the offender to death or to imprisonment. If in your deliberation as a juror you should find the defendant HOBBS guilty of the crime of murder do you have any religious or conscientious conviction which would preclude you from returning a verdict of death?"
Before considering defendant's specific contentions we should like to discuss the right generally as it applies to an accused and to the State. In the first place it must be understood that it is a right to trial by an impartial jury, i.e., one made up of persons prepared to exercise their personal judgment, favoring neither prosecution nor accused, standing indifferent to both, and guided only by law and the evidence in the performance of their duties. Based on this principle, it has been long established in this State that bias or prejudice, expressed or implied, and whether directed toward either party, constitutes ...