Writ of error to the Criminal Court of Cook County; the Hon.
ROBERT L. HUNTER, Judge, presiding. Judgment of conviction
reversed and cause remanded.
MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
JUDGMENT: After a bench trial the defendant was convicted of murder and sentenced to the Illinois State Penitentiary for a period of not less than 14 nor more than 19 years. Defendant sued out a writ of error in the Supreme Court, which transferred the case to the Appellate Court.
POINTS RAISED ON APPEAL: Defendant contends that he was denied a fair trial because:
1) He waived his right to a trial by jury without being properly and adequately informed of his rights;
2) He was prejudiced by the court allowing a witness to testify for the State whose name had never been furnished to the defense counsel who represented the defendant in the trial; and
3) His statement was improperly used to impeach him.
On January 25, 1962, the defendant voluntarily surrendered to the police and was taken into custody. The case came to trial on July 17, 1963.
EVIDENCE: Mrs. Georgia Mack, mother of the deceased, testified that after having lived downtown with the defendant for about a year and a half, her daughter, Dianne, had returned home two weeks prior to the date in question. She testified that on the evening of the shooting her doorbell rang at about 6:15, and that her daughter went to answer it. When she had not returned for some time, Mrs. Mack went to the glass porch door and saw her daughter running north. She further testified that she saw the defendant standing six to eight steps from the front door, with a gun in his hand; that she saw him fire one shot; that she then went back into the house to call the police and while there she heard another shot; that she then went outside and found her daughter lying in the snow, about five houses north of her home. On cross-examination, the witness denied having any conversation with Frank Daniel on the day in question; that he was not in her home and did not bring a dress to her home that day.
Mrs. Sylvia McCurdy was then called as a witness by the State. The then defense counsel objected, claiming her name was not on the list of witnesses he had been given and he was taken by surprise. (Defendant had had two other counsel, each of whom had withdrawn before the appointment of the counsel who represented defendant during the trial.) The court allowed counsel two hours to interview the witness and overruled his objections asking that the testimony of the witness be excluded. Mrs. McCurdy testified that on the day in question she was sitting in a car parked two houses north of the Mack residence. She said she had known the deceased about seven years but had never seen the defendant before the day of the shooting. Her testimony continued as follows: While she was sitting in the car she saw the deceased run out of the house, followed by a man, then by Mrs. Mack. The deceased ran north and the defendant continued to pursue her, firing a gun four times. The deceased ran until she fell in front of a house about five doors north of the Mack home. The defendant then jumped into a car and sped away. On cross-examination Mrs. McCurdy stated that she had not seen the face of the defendant. She also said that she was still at the scene when the police arrived; that she did not talk to them nor did she go to the place where the deceased was lying; that the first time she ever talked about the matter was more than a week after the occurrence when she talked with Mrs. Mack.
Mrs. Mack was recalled by the State and testified that she identified her daughter's body at the morgue and that Dr. Tapia, coroner's pathologist, was present when the identification was made.
By stipulation the doctor's report of the cause of death was read into the record. The examination revealed that there was a bullet wound in the left lumbar region located at the level of the 12th rib; that the bullet was directed upward anteriorly and toward the left.
Police Officer Henry White testified that in response to a call he went to the 1800 block of Hartrey Street, where he saw the body of Dianne Anderson lying on the public sidewalk in front of 1829 Hartrey Street, her head to the north and her feet to the south. He stated that (on information received from the mother) he then made a search for the defendant and also for eyewitnesses. He further testified that the defendant surrendered in the police station on January 25, 1962, and gave the police a gun which he said he had used in the shooting. On cross-examination the officer testified that he did not find Mrs. McCurdy at the scene of the accident. He testified that Mrs. Mack had told him that the defendant had been in the house that day talking to her daughter, and that she did not tell him that anyone else except the defendant had come to the door or had talked to the deceased.
The defendant took the stand in his own behalf and testified that he had known the deceased since 1959; that he had been living with her since March 1959; that he had not at any time stopped living with her, and had been living with her at her mother's where she had been for about two weeks or more. He said Mrs. Mack had told him someone had tried to break into her back door. He testified that he got the gun in Indiana about 2 o'clock the day of the occurrence; that he had gone to Mrs. Mack's that day about 5:00 p.m., and had brought a black coat and a red dress for the deceased, together with the gun. He testified that he and the deceased and her mother were sitting in the dining room having coffee when the front doorbell rang; that Mrs. Mack answered the bell, then returned to the dining room and told the deceased that someone wanted to see her. He stated that when the deceased went to the door he walked behind her, taking the gun with him, and saw a man standing there; that the man grabbed the deceased and pulled her outside; that he (the defendant) came behind the man, put the gun on him and told him to turn her loose; that the man pushed her and she came up behind the defendant, the man got into an automobile and drove away. The defendant said he then asked the deceased who the man was and she told him she didn't know; that he turned to go back to the house and the deceased pushed him over and he fell, at which time the gun fired and the powder burned his face and he jumped up, thinking he was shot, and ran to the gas station. In response to a question as to how often the gun was fired, the defendant said he only heard one shot; that at the time it was fired he was lying on the sidewalk. He said he didn't intend to shoot the deceased. On cross-examination he testified that the deceased had been at her mother's for two weeks. The following questioning occurred:
Q. "And she wasn't with you during those two weeks?"