Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. WILLIAM S. WHITE, Judge, presiding. Affirmed.
MR. PRESIDING JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.
The defendant, Charles Sanford, was convicted by a jury of the offenses of murder and arson. He was sentenced to the penitentiary for concurrent terms of not less than fifty nor more than seventy-five years.
He contends that the State committed reversible error in commenting in its closing argument on his failure to produce alibi witnesses and in turning over a police report to his counsel in the presence of the jury. He also contends that the minimum sentence is excessive and should be reduced.
On August 28, 1965, Sanford was living with Ludia Bell Graves and her ten-year-old daughter at 4545 S. Woodlawn Avenue, Chicago. The couple quarreled and Sanford struck Miss Graves in the face. She left her apartment and went to the fourth-floor apartment of Mr. and Mrs. Taylor.
The next afternoon Sanford came looking for her. He inquired at the fourth-floor apartment of John Davenport but was told that she was not there. He then kicked and banged on the Taylors' door (about six feet away). Miss Graves was in the Taylor apartment, but no one answered the door. She heard Sanford say he would burn everyone up when he came back. About 20 minutes later she again heard his voice in the hallway and heard him say, "Ain't any need any of you all running because I'm going to burn all of you . . . up." A fire started in the hall outside of the Taylor apartment.
A resident of the building saw Sanford enter with a gasoline can. She asked where he was going and he answered "to blow up some people." A maintenance man also saw Sanford enter the building carrying a red can marked "gasoline." No one saw him spread the gasoline, but Mrs. John Davenport heard him say to her husband that he was going to burn the place down and saw him throw a match and a flame shoot up. He stayed in the building about ten minutes, then left empty-handed, first walking, then running down the street. After he left some boys yelled fire and the maintenance man called the fire department.
The fire killed John Davenport and injured two others, including Mrs. Davenport, who jumped from a fourth-floor window.
Sanford denied setting the fire. He claimed that on August 29th he looked for his "wife" with whom he had quarreled the previous day. He asked for her three times at the Davenport apartment but was unable to locate her. On the last effort, about 1:00 p.m., John Davenport told him that she was with her boyfriend. He then decided to have some fun and spent the remainder of the afternoon at a tavern. When he returned to his apartment, he was told of the fire and was arrested.
During Sanford's cross-examination the State elicited the information that the owner and a barmaid were present in the tavern. Neither of these prospective witnesses was called by the defense and in his closing argument, the prosecutor said:
"He said he was drinking in the tavern, a man and a woman were in there, and he was in there the day before, he doesn't bring anybody in from there."
The defendant contends that this remark was improper because the witnesses were equally accessible to both sides. He cites People v. Smith, 74 Ill. App.2d 458, 221 N.E.2d 68 (1966) wherein it was stated:
"It is now well settled that the failure of a defendant to call as witnesses those persons who are aware of facts material to the question of his guilt or innocence creates no presumption of law that, if the witnesses were called, adverse testimony would result, unless `it is manifest that it is within the power of the accused to produce such witnesses and that such witnesses are not accessible to the prosecution.'"
In the Smith case the implications in the State's argument were seriously provocative. The case is not comparable to the present one.
The prosecutor did not argue that the defendant failed to call the tavern owner and barmaid as witnesses because their testimony would have been adverse to him. He merely said that they had not been brought in to testify. Further, the witnesses were not equally available to both sides. There is nothing in the record to indicate that the State knew prior to the defendant's testimony that he would claim an alibi or whom he would name as witnesses to support his story that he was in another place at the time of the crime. The defendant knew who they were and could have had them on hand, the ...