Appeal from the Circuit Court of Cook County; the Hon. EDWARD
E. PLUSDRAK, Judge, presiding. Reversed and remanded.
MR. PRESIDING JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
Two indictments were returned against Willie Ree Harmon on March 24, 1964. The first indictment charged that on March 5, 1964, the defendant murdered Minnie Thomas Cook; the second indictment charged that on the same day the defendant murdered Willie Dean Stewart. Defendant entered a plea of not guilty and was tried before a jury which returned a verdict that he was not guilty of the murder of Minnie Cook, but found him guilty of the murder of Willie Dean Stewart. A motion for a new trial was denied, and the court sentenced the defendant to a term of not less than 25 nor more than 50 years in the penitentiary.
In this court the defendant urges that he was not proved guilty beyond a reasonable doubt; and that the court erred in failing to instruct the jury in the presence of the defendant, his attorneys and the State, in response to a question presented by the jury to the court during the deliberations of the jury. Since the case is being reversed on the ground that the court erred in failing to so instruct the jury, it is not necessary to have a detailed statement of the evidence presented before the court. The evidence was in sharp conflict.
After all the evidence was heard and the jury had been instructed, the jury retired for deliberation. The defendant's attorneys went to dinner at a nearby restaurant and left with the bailiff a written note giving the name, address and telephone number of the restaurant so they could be reached if their presence should be required. Quoting from the State's brief: "In the course of deliberation the jurors phrased a question for the court concerning the possibility of accidental homicide in the slaying of Willie Dean Stewart." On a hearing of the motion for new trial the bailiff testified that in responding to a "buzz" from the jury room,
"At the time I communicated with the Jury, the Foreman or other persons in the Jury Room asked me certain questions. They asked me something in regard to legal questions, and I told them I couldn't answer them. I did not submit the questions that they submitted to me to the Judge. I merely went back and told the Judge what they wanted me to do. . . . After communicating with the Judge, the Judge merely told me that they heard the evidence and leave the law up to the Judge. I then went back to the Jury Room, informed them what the Judge told me, and they thanked me and I closed the door and came out."
At that time the defendant was not brought into the presence of the court, nor did the witness communicate with any of the counsel in the case, nor did the court ask him to communicate with counsel.
The court then stated the following recollection of the situation:
"The Bailiff knocked on my door. I opened the door and said, `What is it?' He said, `The Jury has a legal question.' I said, `Call the attorneys.' My recollection is that he said, `They are not here.' I said, `Tell the Jury the legal questions will be resolved by the Court. They have the problem of the facts. They have all the Instructions.'"
Counsel for the defendant then was given leave to file affidavits, and in support of the motion for new trial, William C. Starke, an attorney for the defendant, filed an affidavit to the effect that both he and his co-counsel left word with the "court captain" that they could be reached at Febo's Restaurant, in the event their presence should be required by the court, and that at no time were they called at the restaurant.
Irwin L. Frazin, an attorney for the defendant, also filed an affidavit in which he stated that he had a conversation with John O'Grady, a member of the jury, who advised him that during its deliberations the jury had occasion to present to the court by a bailiff a question "the contents of which was whether a homicide would be murder or accidental if a person pointed a gun at a second person, the gun accidentally discharged, and a third person was killed." Frazin also stated that he was further advised by O'Grady that to the best of his recollection, the response returned by the court by a bailiff was that the jury had all the facts and should continue to deliberate. Frazin further stated that after he read to O'Grady the question of the jury and the response of the court, O'Grady told him that to the best of his recollection it was correct; and that O'Grady said he would not sign an affidavit.
The court overruled the motion for a new trial.
In its brief in this court the State argues that the jury had been properly instructed in the first instance, and that the court gave the jury 15 instructions. The jury apparently had a doubt as to whether the homicides would be murder or accidental death. The first of their doubts was as to the result of a person pointing a gun at a second person, the gun accidentally discharging and killing a third person. There is sufficient in the record to cause the jury to consider that factual question. The State quotes in this court from Instruction No. 11:
"The Court instructs the jury, in the language of the statute, that a person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death, he either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another."
That instruction does not cover the point raised by the jury, since under this instruction there would necessarily be an intent to kill or do great bodily harm to the person who is killed, or to another. Nor is there anything in the other instructions which ...