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People v. Wax

SEPTEMBER 26, 1966.




Appeal from the Circuit Court of Edgar County; the Hon. HARRY I. HANNAH, Judge, presiding. Judgment of conviction affirmed.


Rehearing denied October 24, 1966.

Defendant appeals from a conviction of a charge of murder upon the verdict of a jury with a sentence of imprisonment of not less than 20 years nor more than 35 years.

It is not denied that shortly after 7:00 a.m. on August 10, 1964, the defendant shot the deceased with a shotgun at a distance of some 20 feet as the decedent was walking away, and that as the decedent lay on the ground following such shot, the defendant approached and discharged 2 more shells into him.

It is defendant's theory that as a matter of law the State did not prove him guilty beyond a reasonable doubt in that there was failure to prove that he was sane at the time of the offense; that the trial court improperly admitted into evidence the testimony of lay witnesses to rebut the defendant's evidence of lack of criminal responsibility; that the trial court improperly limited cross-examination of lay witnesses for the prosecution upon the question of defendant's sanity at the time of the offense; that the trial court improperly admitted into evidence the testimony of Dr. Groves Smith, a psychiatrist, in that his examination of the defendant was of a nature which deprived the defendant of his right to counsel as guaranteed by the Constitution of the State of Illinois and of the United States; and finally that the trial court erred in refusing to instruct the jury as to the elements of manslaughter and in refusing to submit to the jury a manslaughter verdict.

The defendant urges that at the moment of the shooting he was suffering from a mental illness so that he lacked a substantial capacity to conform his conduct with the requirements of the law, and hence was not criminally responsible under the statute, chap 38, § 6-2(a) (Ill Rev Stats, 1965).

In behalf of the defendant, one Dr. Greenfield was requested by defendant's attorneys to examine the defendant to determine his mental condition with respect to capacity to stand trial and cooperate with counsel, his mental status as of the time of the shooting and to make such other examinations and give such treatment as was thought necessary. By reason of this arrangement, Dr. Greenfield was considered to have the status of a treating physician.

A brief chronology of the events leading to the shooting includes the following: On the evening of July 14th defendant and his wife were at a tavern in Brockton. He took his wife home at about 8:00 p.m. and went with his friend, Ashmore, to Greenup where they spent the evening at 2 taverns returning at 2:30 or 3:00 a.m. Defendant apparently received some information that decedent, Wilkey, had been to his home while he was away. There was some argument with his wife during the early morning of July 15th. Returning home from Ashmore's Tavern in Brockton on the evening of July 16th, there was some further discussion with his wife and in the early morning they went to Wilkey's home where Wax demanded an apology from Wilkey, which was made. There is evidence that on this occasion defendant threatened to shoot Wilkey in two if he came upon the place again. The evidence is that from the 18th of July through the 3rd of August, defendant and his wife had a great deal of "argument" during which she denied any intimacy with Wilkey, but she seemingly, on one or more occasions, said that she missed seeing Wilkey when they went to the tavern and that she might leave the defendant. A daughter of the defendant testifying, characterized that which has been described throughout the evidence as "argument" as being mainly name-calling. On the evening of August 3rd defendant went to the tavern at Brockton at about 8:00 p.m. and following the closing at 1:30 a.m. drank a fifth of whiskey with his friend Ashmore, returning home at about 3:30 a.m. There was further "argument" with his wife about Wilkey, and there was some comment that he was ready to go if she was, upon which he fired a revolver through the window. On the evening of August 5th defendant was at a tavern in Brockton from 3:30 p.m. to 8:30 or 9:00 p.m. and was then going to Westville with a friend, but they stopped at another tavern where he became engaged in an altercation with one Charley St. Clair, who allegedly had made remarks about his wife. On the evening of August 6th, or the early morning of August 7th, defendant's wife confessed or admitted that she and Wilkey had engaged in sexual relations on the 15th of July. The testimony of the defendant is that he went downstairs and told the children of the situation and called the sheriff of Douglas County. The sheriff, being delayed in answering the call, the defendant took his shotgun and went in the truck to look for Wilkey, but not finding Wilkey at home, defendant's son persuaded him to return. En route home he threw the shotgun into a field. The sheriff of Douglas County came to defendant's home at around 5:00 o'clock in the morning, at which time defendant was noticeably under the influence of drink. The sheriff took the guns in the house and defendant's son went to look for the shotgun in the field described, but could not find it. The sheriff of Douglas County returned in the evening when it was noted that defendant had sobered up and the sheriff exercised his good offices in an attempt to affect a reconciliation.

In the meantime the defendant and his wife had engaged in conversation and there is some evidence that they had agreed that she should stay at the home until after the crops were harvested.

On August 9th, the Sunday preceding the day of the shooting, the defendant is described as being nervous, and he testified that on that night he wrote what has been called the "suicide note" which he put into his wallet.

On the morning of August 10th, defendant testified that he was going to the elevator at Brockton to see about selling some corn so that he could make the down payment on an automobile for a daughter. His wife testified that he told her that he was going to Hume to see about some tile and that he would get breakfast when he returned. Defendant's testimony is that on the way to the elevator he stopped in the field and found the shotgun, which he put in his automobile then drove on to the elevator to sell the corn. The deceased, Wilkey, was employed at the elevator, and defendant arrived at about 7:00 a.m. In the elevator office he saw Wilkey for the first time since the 17th of July. As Wilkey went out the door of the office, defendant called to him and asked him if he was going to finish tearing down the old house that defendant had given to him and Wilkey said, according to defendant:

"Yeah, I'll be out there some of these days, and I am going to get everything out there anyway."

and defendant testified that Wilkey "kinda sneered at me." As decedent then walked away en route to some elevator out-building, defendant went to his car, got the shotgun and followed decedent, approaching within some 20 feet and shot decedent, who fell to the pavement. Defendant then walked up to him and discharged 2 more shells into the decedent. He then returned to his automobile and drove to his farm home and was located there by the sheriff of Douglas County within the hour. The defendant and his wife testified that he invited her into the yard, told her that he had killed Wilkey and that he would shoot her and himself, she ran and fell and that they talked until the sheriff came. The sheriff testified that when he arrived at defendant's home, defendant and his wife were in each others arms and that the gun was leaning against a shed unloaded with 2 shells on the ground, and subsequently he obtained a third shell from defendant's pocket.

Dr. Greenfield interviewed the defendant on September 19, 1964, September 26th and October 3rd, each interview lasting approximately 1 hour and 20 minutes, and included physical and neurological examination made at the county jail. The diagnosis was a basically paranoid schizoid personality described as fundamental, i.e., with no demonstrable organic cause. The doctor defined paranoid as a character difficulty making the individual suspicious of people, jealous and with a sense of fear and insecurity. Schizophrenia is defined as a state of unreality where the mind cannot adhere to normal thoughts.

From his interviews Dr. Greenfield concluded that defendant had a poor image of himself, that he felt that he was disliked, ugly, was not intelligent, was suspicious of the motives of others, that he hated to be alone and possessed unexplained fears at night, that everyone was against him, and that his mother had rejected, or did not love him.

The doctor found that with this personality the defendant worked harder, acquired a farm of some 800 acres and ...

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