Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. RICHARD A. HAREWOOD, Judge, presiding.
MR. JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT.
Melvin Daniels, the defendant here, and one George Sims were indicted for murder. Represented by private counsel, Daniels moved for a severance, which was granted. He was found guilty in a bench trial, however, the trial judge granted defendant a new trial. A Chicago Bar Association lawyer was appointed to represent defendant in the second trial, where he was again found guilty by a second judge sitting without a jury. Daniels was sentenced to not less than fifty, nor more than fifty-five years in the penitentiary. Defendant's brief raises the following points on appeal:
(1) Error in admitting into evidence the declaration of a co-defendant;
(2) Error in admitting into evidence testimony of Florence Davis, such testimony being hearsay;
(3) That the State did not prove its cause beyond a reasonable doubt; and
(4) That the trial court erred in expecting defendant to assume the burden of proof and prove his innocence beyond a reasonable doubt.
George Lemon, the deceased, was a special employee of the Chicago Police Division of Narcotic Control. Lemon participated in a controlled purchase of narcotics from Daniels and that transaction was the basis of an indictment charging Daniels with unlawful sale of narcotics. The trial of the narcotics case was set for February 28, 1961, at which time Lemon was to appear and testify against Daniels.
One of the State's witnesses was Clarence Murphy. He testified that he met Lemon very late on Sunday evening, February 26, 1961. Together they went to the apartment building where defendant lived and Murphy went upstairs to get defendant. Murphy, Lemon, one Howard Sims, and defendant, then went to a restaurant for a bite to eat. This was about 12:30 a.m. on Monday. Sims, Lemon and defendant went into the restaurant while Murphy remained in the car. After eating, the four men drove back to defendant's apartment. Sims and defendant went upstairs and returned five or ten minutes later. The four men drove off again. Murphy got out of the car about one block away from the apartment. Sims, Lemon and defendant proceeded on.
Sims, who later testified for the State, and defendant, who testified on his own behalf, confirmed Murphy's testimony with respect to going to get something to eat shortly after midnight on February 27, 1961. Sims corroborated Murphy's story that the foursome returned to defendant's apartment. Sims and defendant went upstairs and returned and then dropped Murphy off about one block from the apartment.
Sims further testified that when he and defendant returned to the apartment, defendant gave him a .32 caliber pistol. After dropping Murphy off, the remaining threesome drove on. They stopped at a place called the Silver Dollar. Lemon and defendant went inside and upon returning about 25 minutes later, Lemon was eating popcorn. The two got back into the car and Sims started driving again. Defendant put a gun to Lemon's head and ordered Sims to keep driving. When the group reached Evergreen Park, defendant and Lemon got out of the car and walked away. Sims heard three or four shots. Defendant returned to the car without Lemon and Sims drove back to the apartment. Upon returning to the apartment, Sims told one Florence Davis what had happened. Defendant, meanwhile, dismantled the gun and wrapped it in a scarf. Sims and defendant went out again and disposed of the gun by throwing it off a bridge into the river at 31st and Western.
Lemon's body was found by the Evergreen Park Police at about 6:00 a.m., on February 27, 1961. In an investigation of the area where the body was found, the officer found four discharged casings of bullets from a .32 caliber gun. In Lemon's clutched hand, the police found an empty popcorn bag. The police had been notified by a newspaper delivery boy, who while on his morning route, found the body. A resident of that neighborhood testified that he had heard some shots at about 3:00 a.m.
Florence Davis lived in the same building as defendant. She saw defendant and Sims together at the apartment building late Sunday night, February 26, 1961, and testified that they left the building about 12:00 a.m., Monday. About an hour and a half later, they returned. Defendant and Sims were there for about 15 minutes. During this short period of time, Miss Davis had the first of two conversations with Sims. The admission of the contents of the coversation into evidence, defendant charges, was error. According to Florence Davis, Sims told her that he and defendant were "getting ready to go off George Lemon." "Off" is slang for the word kill. She then saw defendant remove a gun from a drawer and leave with Sims.
At about 5:00 a.m., on the same morning, Sims and defendant returned to the apartment. Sims had the second conversation with Miss Davis which was also admitted into evidence. Miss Davis testified that Sims told her that he and defendant "had just killed, took George Lemon and killed him." Sims also told her they were going back out to dispose of the gun. Sims wrapped it up in a rag of some sort and the two men then left the apartment.
Defendant testified on his own behalf. He admitted that he was with Sims, Murphy, and Lemon during the early morning hours of February 27, 1961, and that the group went to a restaurant for something to eat. Murphy left the group about one block from defendant's apartment; Lemon asked to be driven to the Silver Dollar where he left the group; Sims asked to be dropped off at 55th and Wentworth and defendant ...