Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. LESLIE E. SALTER, Judge, presiding. Judgment
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.
Defendant-appellant, Aster Turner, Jr., was indicted for murder and his co-defendants, Curtis Sanders and William Jenkins, were charged with being accessories after the fact and with murder. After a joint jury trial in July 1961, defendants Jenkins and Sanders were found not guilty on the murder charge and on being found guilty of being accessories after the fact were each sentenced by the court to one year to one year and a day in the penitentiary and fined $1 which fine was suspended. The jury found the defendant Aster Turner, Jr. guilty of murder and fixed his punishment as imprisonment in the penitentiary for a 199-year term and he alone brings this appeal.
The defendant contends: (1) that the evidence is insufficient to prove his guilt beyond a reasonable doubt because: (a) the deceased threatened to use force against the defendant; (b) the defendant was not the aggressor; (c) the danger to the defendant was imminent; (d) the force threatened by the deceased was unlawful; (e) the defendant reasonably believed that danger existed, that the use of force was necessary to avert the danger and that the kind and amount of force he used was necessary. It is further contended: (2) that the trial court committed numerous errors during the trial: (a) in refusing to allow Mrs. Mollie Turner to testify to Driver's reputation for violence, and in refusing to allow her to testify about threats which she received prior to the shooting; (b) in excluding evidence that Driver was a member of a gang known as the Vice Lords; (c) in allowing the statement of co-defendant William Jenkins to be considered as evidence of the defendant's guilt; (d) in instructing the jury that they might consider the element of flight in determining the defendant's guilt; (e) in ignoring the defendant's plea of self-defense in its instructions on the definition of murder and that the prosecutor's closing argument was inflammatory and not based on the evidence to the prejudice of defendant.
The testimony presented by the State showed that on the evening of June 10, 1961, Malcolm Driver, Vivian Collins and James Ruffin were standing in front of a tavern at 3510 Ogden Avenue when an automobile containing four men pulled to the curb in front of them. The defendant, Aster Turner, Jr., and Curtis Sanders got out of the car and the defendant asked Driver if he would buy him a drink. Driver testified he refused and asked Turner, "did he want me to buy him a drink for the way he had treated me the Saturday night before then. And when I said this he said he would blow my brains out on the street. And I said if you do, you have to shoot me in the back." He said he then started walking away and when the defendant told him to stop he heard Vivian shouting that he should be careful because the defendant had a gun in his hand, "And when I turned around, he was standing with the gun on me." He testified that he then met Charles Garrett, the deceased, who asked him what was happening and after being told Garrett walked up to the defendant and told him, "You don't bring no four men on this corner to double team one man about something that is over with." He said the defendant cursed Garrett, ran back to the car and as the car started pulling away he started shooting. He heard three shots and saw Garrett, who was fifteen feet from the car, fall down.
James Ruffin testified that after the car pulled up he saw the defendant get out and walk up to Driver, pull out a gun and after putting it back in his belt, got into the car. He said Garrett came out of the tavern, walked up to the car and someone in the car cussed him. He heard three shots and Garrett was killed. On cross-examination he said that prior to the shooting he heard the defendant say, "I'll kill you" and Driver replied, "If you are going to shoot me, you are going to have to shoot me in the back and he turned around and walked away." He said there was no argument between them, just loud talking. He also said that Garrett was about four or five feet from the car when the shots were fired and he testified on redirect that the car was pulling away when he heard the shots and saw Garrett fall to the ground.
Fourteen-year-old Vivian Collins testified that the defendant and Driver were arguing and the defendant "showed" a gun. She said Garrett went over to see what was wrong, and as the car was moving he pointed to the defendant and said something and "before I knows it, I just saw two shots go off" and Garrett was shot. On cross-examination she said both Driver and the defendant were cussing each other. She also said that Garrett was close to the car when the defendant shot him, that there were no words between them when it happened and that the defendant did not threaten Garrett.
Dr. Eulogio Tappia, a coroner's pathologist, testified that two bullets went through Garrett's body, one penetrating his lung hitting the spinal cord and the other hitting the groin. He said there was alcohol present in Garrett's body, but it did not amount to intoxication.
Aster Turner, Jr. testified in his own defense that he received several phone calls shortly before the shooting threatening to kill him, his wife and baby, including one call from Driver whom he knew for about one year. On the day in question he and William Jenkins were in an automobile driven by Curtis Sanders and were on their way to purchase liquor when he saw "C.L." (Driver's cousin) a friend of his, and he told Sanders to stop. He said he asked "C.L." if he had any money and when he said no he asked him if he wanted a drink and "C.L." said no. He said "C.L." left, and Driver came over and threatened to kill him. When Sanders came out of the tavern they returned to the car. He said when they got in the car Driver had a knife in his hand and Garrett, whom he didn't know, pulled a gun and fired in the car. "And when he shot, I went in the coat and got the pistol out." He testified that he did not have the pistol outside the car, but that he had left it inside his coat in the car.
On cross-examination he said that after Garrett shot and hit the inside roof of the car, he took his gun from his coat and fired two shots. He also said that he had the loaded gun with him because "they had threatened his life." At the time of the shooting he said Driver was attempting to open the car door and had a knife in his hand. He admitted that he never told the police he shot in self-defense.
Curtis Sanders testified that he had not known Garrett or Ruffin before the occurrence but had seen Driver before. He said when they arrived at the tavern the defendant told him to stop because he saw a friend of his. They got out of the car and while the defendant was talking to "C.L." he went into the tavern to purchase whiskey and when he came out he saw four men arguing with the defendant and cursing him. After he heard Driver threaten the defendant he said he pushed Turner to the car, warning him that the men were gang fighters. He testified that he saw four men "rushing the side of the car" when a "gunshot goes off right over the right hand side of the convertible top of the car." He also said that Garrett pulled the car door open as he was pulling out and that the defendant didn't have a gun when he was outside the car. On cross-examination he testified that after a shot was fired over the defendant's head he saw the defendant fire his gun, but he didn't know if Turner shot the man.
C.L. Driver testified for the defense that he met the defendant as he came out of the tavern at the site and was asked if he had any money and when he said no the defendant asked him if he wanted a drink, and he again declined. He further testified that, "He (defendant) said he had been arguing with some guys. He said he didn't know who the guy was. I said, well, is that them coming there. He says he didn't know. I says, well I have got to go, and I left."
Mollie Turner, the defendant's wife, testified that in the month preceding the occurrence there were several phone calls by men who would not give their names. She said she knew Driver for two years, that he came to her home with her husband many times, that he wore an earring and that his reputation in the community was bad. On cross-examination she said her babysitter told her of Driver's reputation, but that her husband was not aware of this reputation.
Opal Jenkins, wife of the co-defendant William Jenkins, testified that she knew Driver for about six months and that his reputation in the community for being a peaceful citizen was bad.
The defendant first contends that the evidence is insufficient to prove him guilty beyond a reasonable doubt as Garrett had threatened him, followed him to the car, and then fired a gun at him, and he points out that the police found a bullet hole in the car top. He further argues that even though one may be the initial aggressor, if he abandons the aggression he may use force to defend himself if threatened with death or great bodily harm, citing People v. Forte, 269 Ill. 505, 110 N.E. 47 and People v. Allen, 378 Ill. 164, 37 N.E.2d 854. The defendant maintains that he reasonably believed that danger existed, that ...