Appeal from the Circuit Court of Cook County; the Hon. RICHARD
J. FITZGERALD, Judge, presiding. Affirmed.
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
Rehearing denied December 11, 1968.
In a two-count indictment, the three defendants, Frank Hough, Arthur Larson and Martin Kracht, together with Dominic Mazzone, were charged with murder in violation of chapter 38, section 9-1(a) (1) and section 9-1(a) (2), Ill Rev Stats 1963. On motion of the State, a severance for Mazzone was ordered, and he testified for the State. A jury found Hough, Larson and Kracht guilty of voluntary manslaughter, and each was sentenced to the penitentiary for a term of from nine to twenty years. The State then nolle prossed the indictment against Mazzone. The three defendants appeal.
A summary of the evidence shows that on May 25, 1966, Jerome Huey, a 17-year-old Negro boy, while scuffling with four white boys, Hough, Larson, Kracht and Mazzone, was hit on the head by one of the four with a baseball bat. He died from his injuries on May 29, 1966. At the time of the trial (March 1967), the three defendants were 19 years of age. Seventeen witnesses testified for the State; six witnesses, including the three defendants, testified for the defense.
On appeal, the three defendants contend:
I. The trial court erred in submitting a voluntary manslaughter verdict and instruction to the jury. Either the State's theory supported a verdict of murder, or the defense theory supported a verdict of not guilty. A voluntary manslaughter verdict was contrary to any interpretation of the evidence.
II. The defendants were denied a trial by an impartial jury in that prospective jurors having scruples against capital punishment were excused for cause.
III. As to defendants Kracht and Larson, the court erred in permitting into evidence post-occurrence inculpating statements by Hough and Mazzone made outside the presence of Kracht and Larson.
IV. The defendants were denied a fair and impartial trial by virtue of the prejudicial conduct of the prosecutors.
A. The Assistant State's Attorneys attempted to conceal from the jury that the accomplice and principal witness had knowledge of a promise to dismiss the charges against him in return for his testimony.
B. The cross examination of the defendant Kracht was calculated to hold him in disrepute and thus deny him a fair trial.
C. The arguments of the Assistant State's Attorneys were inflammatory and denied the defendants a fair trial.
The evidence shows that on May 25, 1966, at about 8:30 p.m., the three defendants and Mazzone, with a group of neighbors, were standing near the corner of 24th Place and Laramie in Cicero. All four boys had been drinking beer in an alley, and a car full of Negro boys drove past the defendants, shouted obscenities at them and called them "white bastards." A few minutes later the defendants saw a Negro boy (Jerome Huey) crossing the street, and defendant Kracht said, "I think this is one of the boys, let's go talk to him." Defendant Kracht then took a baseball bat from his automobile "to protect myself in case any of his friends were around." As the boys proceeded down the street, Mazzone ripped an aerial from a parked car. Mazzone testified that as the four neared Huey, Huey came at him with a radio antenna, and they engaged in a fight, striking at each other with two aerials. While Larson and Huey were wrestling, one of the boys (the evidence is in conflict as to which one) struck Huey on the head with the baseball bat. At this point, Eugene Thompson, a Negro who observed the fight, shouted at the boys and approached them with a board in his hand. The four then ran back to where Kracht's automobile was parked and drove away.
Dominic Mazzone testified for the State. He stated that when the Negro boy walked past the car Kracht said, "Let's get that colored guy," and took a bat from the trunk, and the four boys left the car together. Hough grabbed the bat from Kracht and said, "He's mine." Mazzone then took the bat from Kracht and said, "You don't need the bat, you'll kill him." Hough grabbed the bat back from Mazzone and again said, "He's mine." Mazzone further said that he and Huey were swinging aerials at each other and as they were "sword fighting at each other," Larson jumped on Huey, and they both wrestled to the ground. Then Hough told Larson to get out of the way, and Hough hit Huey with the bat, once in the knees and once on the head. At that time a colored boy with a board in his hand said, "Leave that colored boy alone," and the four ran toward 25th Street, and the bat was still in Hough's hand. Later, Mazzone and Kracht approached Kracht's car where several persons were seated, and while Hough and Larson were about 20 feet away, Mazzone said, "Get out of the car, I think we killed him." Everyone got out of the car, and the four got in and drove away. Mazzone also testified that on the evening of the occurrence he was wearing a white pancake hat.
Eugene Thompson, a State witness, testified that as he approached the scene, he picked up a board and yelled and kept running toward the group, he saw them run behind a filling station, and he kept going until a police officer stopped him.
Police Officer George Bahnick testified that he observed two white youths chasing Thompson, and one of the youths was wearing a small white hat and was carrying a baseball bat. Curtiss Voss, another witness to the event, testified he saw the bat being raised and struck against the victim by a boy wearing a light brown straw hat. Margo Dalessandro, a witness for the State, testified that she had seen the four boys in an alley drinking beer. When the four boys left the car, Kracht was still in possession of the baseball bat, which he had taken from the trunk of his car. About 15 or 20 minutes later, the boys ran back to the car from the south and they still had the bat, but she did not recall which of them was carrying it.
A witness for the defense, Jean Dalessandro, mother of Margo Dalessandro, testified that Hough, Kracht and Mazzone had already left the automobile and had disappeared from sight when she sent Arthur Larson after them, telling him to "go after the boys and stay out of trouble." She also testified that Mazzone was wearing a straw hat.
Defendant Larson testified in his own behalf. He stated that after the other three boys left in pursuit of Huey, he was standing beside the car talking with Mrs. Dalessandro. She "asked me to go and see what the boys were doing and not to get in any trouble." As Larson joined the group the fight was about to begin. "Dominic had just gone up to the boy and started hitting him. And the boy hit him. When the boy hit him, he started backing off, when they started swinging at each other. . . . I came off the sidewalk into the street and I tried to get between them. I pushed the colored boy with my left hand and Dominic with my right hand and the colored boy started swinging at me and he hit me on the side of the head with the aerial. He hit me once. Then I turned to face him and I grabbed him. I just threw my arms around him. We both fell to the ground. I fell on top of him and we were just wrestling. We were on the ground for just a few seconds. Then I heard somebody say, `Get up, get up,' and I started to get up and the colored boy started to get up with me."
On cross-examination, he testified that when he got up he saw the bat for the first time, and it was in Mazzone's hand. Later, Mazzone had the bat when he came back to the car. Larson further testified, "I did not have any other reason to touch that colored boy except that I saw him fighting with Dominic Mazzone. I tried to break up the fight. I had seen Dominic and him fighting with the aerials. Besides that fight, besides my own wrestling, I did not see anyone else touch him at any time. I was paying attention to the second colored fellow who came along with the board in his hand."
Defendant Kracht testified that when he saw Huey walk past his car, he said to his group, "`I think this is one of the boys, let's go talk to him.' I took the bat out of the car to protect myself in case any of his friends were around."
Defendant Hough testified that as the four boys walked south on Laramie, he said to Kracht, "I don't think we need a bat." Kracht then gave him the bat. When they got to 25th Place, Mazzone was fighting with "the colored kid." Each one of them had an aerial, and they were swinging at each other. Larson ran in between them, and "the colored boy hit him with the aerial." Larson threw his arms around Huey, and they fell to the ground. Mazzone grabbed the bat and hit the colored boy (Huey) two or three times as he started to get up. A second colored boy came on the scene with a board in his hand, and Mazzone ran after him with the baseball bat. At that time Mazzone was wearing a white straw hat. Later, Mazzone came back to the car and said, "Let's get out of here, I think I killed him."
Considered first is the contention that it was reversible error to submit to the jury a voluntary manslaughter instruction and verdict. The record shows that both the State and the defense objected to the giving of the manslaughter instruction. It was a "court's instruction."
Defendants contend there was no evidence tending to prove manslaughter, and it was error to give such an instruction not based upon any evidence. They assert that if any crime was committed, it was wilful and deliberate murder and, therefore, it was error to give an instruction authorizing a verdict for a lesser offense. (People v. Schultz, 267 Ill. 147, 158, 107 N.E. 833 (1915).) In People v. Newman, 360 Ill. 226, 195 N.E. 645 (1935), it is said (p 231):
"This court has often announced the rule that where the evidence is such that it admits of but one of two conclusions, either that the defendant is guilty of murder or is innocent, the giving of an instruction and form of verdict on manslaughter is improper, and where given at the request of the People amounts to error requiring a reversal of the judgment if the accused be found guilty of the lesser crime. . . . The rule often stated, and conceded by the People, is that if a sufficient time has intervened between the provocation and the killing to permit the voice of reason to be heard the crime cannot be manslaughter but if any crime is committed it is murder. . . . [I]t seems clear to us that there is in the record no evidence upon which a manslaughter verdict could be based. The giving of this instruction was error requiring reversal."
The defendants argue that the evidence shows that Mazzone actually administered the fatal blows to the victim, and there was no joint undertaking to harm the Huey boy when they left the car, and at the time Mazzone deliberately struck Jerome Huey he was not coming to the aid of any of the three defendants. Defendants assert that the instruction on the subject of manslaughter was an intimation to the jury that if they were not satisfied the defendants were guilty of the only crime the evidence tended to show they could have committed, they might find them guilty of a lesser offense, notwithstanding there was no evidence to sustain the finding of guilty of the lesser offense.
The State concedes that a manslaughter instruction should not be given where the evidence supplies no ground on which the jury might find a defendant guilty of manslaughter. The State argues that it is equally true that in all criminal cases, a jury should be fully instructed on any theory of the law which they might reasonably find to be true from the evidence (People v. Izzo, 14 Ill.2d 203, 151 N.E.2d 329 (1958)), and where there is any evidence in the record which, if believed by the jury, would justify it in finding a killing to be manslaughter rather than murder, the ...