Appeal from the Circuit Court of Cook County, County
Department, Criminal Division; the Hon. EDWARD E. PLUSDRAK,
Judge, presiding. Judgment of conviction affirmed.
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.
The defendant, Frederick Bailey, was convicted of murder after a jury trial and was sentenced to a term of not less than twenty-five nor more than fifty years in the penitentiary.
On appeal it is the defendant's contention that (1) the State failed to prove the corpus delicti of the crime of murder; (2) that the defendant was not found guilty of murder beyond a reasonable doubt; (3) that the conduct of the trial judge prevented the defendant from having a fair and impartial trial; (4) that allowing the defendant's statement, given to an Assistant State's Attorney, to be taken to the jury room was error; (5) that the defendant was represented by incompetent counsel; (6) that the court erred in disallowing certain of defendant's jury instructions; (7) that prejudicial argument of the prosecutor prevented defendant from receiving a fair and impartial trial; and (8) that the sentence imposed was excessive.
We first consider whether the State failed to prove the corpus delicti of the crime of murder. Lena Burke, widow of the victim, testified that she saw her husband on June 6th, and described him to be in good health. She again saw her husband that night in the emergency operating room of a hospital and the next time she saw him was in the county morgue the following morning. The defendant argues that these facts may give rise to an implication or circumstance that he was dead, but that more than this is required to establish the corpus delicti citing People v. Benson, 19 Ill.2d 50, 166 N.E.2d 80, and People v. Wilson, 400 Ill. 461, 81 N.E.2d 211. In Benson the court concluded that there was a reasonable doubt that the deceased came to her death from the illegal act of intercourse or from any criminal agency of the defendant, stating that "When one is charged with murder the elements which must be established are proof of death and proof of a criminal agency causing death, both of which must be established by the evidence beyond a reasonable doubt. (People v. Wilson, 400 Ill. 461.)" P 58. In the instant case the defendant testified that he purchased a gun on June 6th; that during an automobile ride with the deceased on that day they argued and he had the gun in his hand when the deceased attacked him and somehow the gun was discharged. A coroner's pathologist testified that his examination of the body of the deceased on June 7th, revealed three bullet wounds, and in his opinion the cause of death was a bullet wound of the aorta. The evidence clearly establishes that the corpus delicti was proven.
It is the defendant's further contention that he was not found guilty of murder beyond a reasonable doubt. He points out that murder has been defined as the unlawful killing with malice aforethought, either express or implied, People v. Papas, 381 Ill. 90, 44 N.E.2d 896, and that the element that distinguishes murder from manslaughter is malice aforethought and that ". . . the word `aforethought' implies, requires an action of the brain prior to the act." People v. Cochran, 313 Ill. 508, 519, 145 N.E. 207. He argues that had the shooting taken place at the time he was at the victim's place of business that would be express malice, but instead that after the two of them were together for some two hours at a bar, he drove the car on the expressway and after they had talked about the deceased going with his wife and while on their way to Milwaukee to straighten the matter out the deceased was shot, which he says negates any showing that he acted deliberately or with malice aforethought.
The record reveals that the defendant was suspicious that the deceased was having an affair with his wife. Shortly before he drove to a garage where the deceased worked he purchased a gun which he placed underneath the floor mat of the car. He testified that he did not go there for the specific purpose of seeing the deceased or to threaten him or to do him bodily harm, but went there to see his brother-in-law, although he knew the deceased was also employed there. After waiting there for one and one-half hours, the two of them drove in his brother's car to a tavern, where they had drinks for about two hours and then went for a ride in the automobile. It was during this ride that the deceased brought up the matter of the defendant's wife and an argument started while he was driving the car.
The defendant testified to several versions of what took place before the shooting. On direct examination he said he didn't remember where his gun was, but that the deceased was struggling with him for the gun and it was discharged accidentally. He said when he saw bloodstains on the deceased he drove him to a hospital and took him to the emergency room. On cross-examination he said it was possible that the deceased pulled the gun out from under the seat. Later he said he "reached for the gun" with his right hand while he was driving and the deceased didn't have it. He said he evidently switched the gun from his right hand to his left hand. He said the deceased was trying to get the gun away from him when "I heard the gun firing" and it was accidently discharged. He admitted that he might have told the police officers that he bought the gun to scare the deceased and that at the coroner's inquest it was possible that he may have said that "I had gotten the gun to frighten Levy Burke [deceased]. . . ."
A police officer testified that the defendant voluntarily told him at the hospital that the deceased shot himself and did not say there was a struggle for the gun. A police detective testified that at the police station the defendant told him that he went to the garage to talk to the deceased about an affair he was having with his wife. That he waited until the deceased got off of work. They went to a tavern together, had two drinks and discussed the affair that the deceased was having with his wife. They decided to go to Milwaukee to straighten it out. He then drove on the expressway and while driving picked the gun from underneath the floor mat with the intention of giving it to the deceased to place it in the glove compartment. When he produced the gun Mr. Bailey said that Burke probably thought that he was going to do something with it, and a struggle ensued. Bailey stated that during this struggle he held the gun in his hand and the gun discharged and they continued struggling. During all this time the defendant said he was driving the car. The detective said when he again questioned the defendant he said the purpose for pulling the gun out from underneath the seat was to scare the deceased.
Joseph R. Gill, an Assistant State's Attorney, testified that he went to the police station about 12:30 a.m. on June 7th, and questioned the defendant while a court reporter took notes. The statement was signed by the defendant after he read it and the defendant made corrections. The defendant testified that he may have made the statement that appears in this document that he bought the gun to scare the deceased, but he didn't remember.
[2-4] We have carefully reviewed the record and are of the opinion that the jury could not have reached any other conclusion than they did from the unbroken chain of evidence. It is clear that the defendant being suspicious that the deceased was having an affair with his wife purchased a gun, went to deceased's place of work, discussed the matter with him and then shot him three times while they were alone on the expressway. The rule is well established that credibility of witnesses and the weight to be given to their testimony are matters to be determined by the jury and this court will not disturb the verdict unless the evidence is so unreasonable, improper or unsatisfactory to justify our conclusion that there is a reasonable doubt of the defendant's guilt. People v. Woodruff, 9 Ill.2d 429, 137 N.E.2d 809.
It is further contended that the conduct of the trial judge prevented the defendant from receiving a fair and impartial trial. The defendant complains of interrogation by the trial judge. The record shows that after the widow had testified that she saw her husband on the morning and evening of June 6th, the court asked: "Mrs. Burke, prior to seeing your husband in the hospital on June 6th, was he in good health?" and she answered, "Yes, he was." No objection was made by the defense. Also while a detective was being questioned on direct examination by the prosecutor the court asked:
"The Court: Maybe there is one point that needs clarification. Are you saying, officer, that in a second statement the defendant said that he ...