WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
GEORGE FIEDLER, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 27, 1967.
In connection with the death of Vearlene Howard on October 5, 1962, the defendant, John Taylor, was indicted for murder, voluntary manslaughter and involuntary manslaughter. The jury found him guilty of murder, and he was sentenced to imprisonment for not less than 20 years nor more than 40 years. The contentions that he advances on this writ of error require that the evidence before the jury be rather fully stated.
The defendant worked as a livery cab driver in Chicago. Shortly before 3 A.M. on the morning of October 5, 1962, the defendant, his "girl friend", and Howard were in a poolroom. Howard asked the defendant to drive him to the Blue World tavern. The defendant agreed, and his "girl friend", Ruth Gray, accompanied them. After they arrived at the tavern the defendant told Howard that the fare was 75¢, and Howard handed him a $10 bill which the defendant said he could not change. Howard then handed him a $1 bill which he was also unable to change so he sent Ruth Gray into the tavern to change it. From this point on there is conflict in the testimony.
The owner of the tavern and a waitress testified for the State that they saw the occurrence through the tavern window. Both testified that Ruth Gray entered the tavern and obtained change for a $1 bill. The owner testified that he watched her return toward the car and that both men were already out of the car. He could not hear their conversation. He testified that the "big man", the defendant, "scuffled" the deceased across the street, where the deceased fell down and the defendant got over him and struck him two or three times with an object he had in his hand. At no time did the witness see the deceased go near Ruth Gray. He also said that he had locked the door and called the police before the two men wrestled across the street. After the fight the defendant and Ruth Gray drove away and Howard tried to enter the tavern but could not because it was locked. The police arrived within a few minutes, and Howard was taken to a hospital, where he died. Neither a weapon nor a $10 bill was found on his body.
The waitress also testified that she saw the entire episode. She testified that the men were still in the car when the woman left the tavern with the change, that the defendant got out first, pulled the deceased from the car, and held him by the necktie and swung him backward and forward. The deceased was trying to get away, and the defendant took something shiny from his pocket. They struggled across the street. Howard tripped on the curb and fell, and the defendant bent over him and moved his right arm up and down with something shiny in his hand. She said she did not see the deceased near Ruth Gray. She also testified that the owner was not at the window until she called him to come there after the fight began, and that the owner did not call the police until after the fight had ended and Howard "had staggered across the street and was beating on the door."
The defendant testified that Ruth Gray returned, entered the car and gave him the change. He handed 25¢ to Howard, who demanded an additional $9. The defendant told Howard that he did not have his money, that he had returned the $10 bill. The defendant then offered to look in the back seat for the bill, got out of the car and was looking in the back seat when he heard Ruth Gray scream. He went to her side of the car where he saw Howard trying to pull her out, and ordered him to stop. Howard refused and a fight ensued. The defendant testified that during the fight Howard threatened "to blow" the defendant's "brains out" and reached for his pocket. The defendant then drew a knife and, while they were wrestling, Howard received the knife wound that caused his death.
Ruth Gray testified to the same effect. She said that after she had returned to the car and Howard had demanded $9 more, he got out of the car and began acting "like someone who had gone completely mad." She testified that he tried to pull her out of the car and had almost succeeded when the defendant intervened and the fight began. She did not hear Howard threaten the defendant.
The defendant was arrested at Ruth Gray's apartment later that morning and taken to a police station. From there he was taken to the State's Attorney's office, where he signed a statement that was introduced in evidence. The statement was consistent with some of his testimony, particularly as to Howard's assault upon Ruth Gray, but omitted certain matters to which he testified, particularly Howard's threat to blow his brains out. The defendant testified that at the time the statement was taken, sometime in the afternoon of October 5, he was nervous and upset from the fight.
The defendant's first contention is that the statement given to the assistant State's Attorney should have been excluded because he was not warned of his right to remain silent and to have the assistance of counsel, as required by Escobedo v. Illinois, 378 U.S. 478, 12 L.Ed.2d 977, and Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694. In Johnson v. New Jersey, 384 U.S. 719, 16 L.Ed.2d 882, the Supreme Court held that the principles of Escobedo and Miranda applied prospectively. And in People v. McGuire, 35 Ill.2d 219, People v. Wallace, 35 Ill.2d 251, and other cases we have refused to apply those principles retroactively. This defendant was tried in March of 1963. There is no contention here that the statement was not voluntarily made, and we hold that it was properly received in evidence.
The defendant next contends that the evidence was insufficient to establish his guilt beyond a reasonable doubt. If the testimony of the witnesses for the prosecution is believed, however, it was sufficient to establish the crime of murder. Their testimony was that the defendant was the aggressor throughout the fight, and that at no time did Howard offer any threat to the defendant's safety. Their testimony negatived the existence of the provocation relied on by the defendant, for both of these witnesses denied that Howard at any time approached Ruth Gray or offered any violence to her. No weapon was found on the deceased. These circumstances are in our opinion sufficient to establish the crime of murder.
The defendant's contention that the evidence was insufficient is based upon certain discrepancies in the testimony of the prosecution's eyewitnesses, which are said to render their testimony so questionable as to raise doubt in the minds of reasonable persons. The waitress testified that the defendant pulled Howard out of the cab, while the tavern owner testified that when Ruth Gray returned to the cab, both men were standing beside it. The waitress testified that the tavern owner called the police after the deceased had staggered across the street and was beating on the door of the tavern, asking for help. The tavern owner testified that he called the police before the fight started. The two witnesses also disagreed as to whether the tavern owner was standing at the window when the defendant's cab arrived in front of the tavern and as to the lighting conditions in the area. The defendant also points out that the tavern owner testified that the defendant struck the deceased two or three times while the coroner's inquest showed only one wound through the heart and another on the defendant's hand. In our opinion these discrepancies did not render the witnesses so unreliable as to preclude the jury's verdict. Their credibility was for the jury and their testimony that the deceased did not approach or touch Ruth Gray contradicted the defendant's claim of provocation.
While the evidence was thus sufficient in our opinion to sustain a conviction for murder, it was also sufficient to sustain a conviction for manslaughter if the jury believed the testimony of the defendant, and he contends that the judgment must be reversed because the trial judge did not instruct the jury or submit a form of verdict with respect to that offense. Many decisions of this court have stated that "* * * if there is any evidence in the record which, if believed by the jury, would reduce a charge of murder to manslaughter, an instruction defining that crime should be given. (People v. Brown, 415 Ill. 23; People v. Newman, 360 Ill. 226; People v. Beil, 322 Ill. 434; People v. Tokoly, 313 Ill. 177.)" (People v. Harris, 8 Ill.2d 431, 434). Under these authorities it is immaterial that the defendant did not request a manslaughter instruction, or objected to it.
On the other hand it has been held that the failure to give a manslaughter instruction cannot be asserted as a ground for reversal in a reviewing court unless such an instruction has been requested. (People v. Weisberg, 396 Ill. 412; People v. Harrison, 395 Ill. 463, 477.) The reason for this rule was thus stated in People v. Lucas, 244 Ill. 603, 614: "No such instructions having been asked by plaintiff in error, the court had a right to assume that plaintiff in error preferred to submit the case to the jury in such way that the jury would be compelled to find the defendants guilty of murder or not guilty. It was the right of plaintiff in error to submit that question to the jury and require the jury to pass on the question of his guilt or innocence of the crime of murder, and it was not the duty of the ...