Appeal from the Circuit Court of Cook County; the Hon. LESLIE
E. SALTER, Judge, presiding. Affirmed.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.
The defendant appeals from a conviction of murder. The trial was by jury, and the court imposed a sentence of thirty to sixty years in the Illinois State Penitentiary. An appeal was initially taken to the Supreme Court which transferred the cause to this court because the defendant's appeal did not present a substantial constitutional question.
The defendant, Jeffery Junior Williams and one Leonard White were charged in a two-count indictment with the murder and voluntary manslaughter of one Will Hugh Hutto.
The defendant contends on appeal that (1) the denial of his petition for a change of venue was reversible error; (2) the denial of a sanity hearing violated due process of law; (3) the court erred in allowing the State to nolle the manslaughter count of the indictment after the jury was impanelled and evidence was presented; (4) he was wrongfully denied the right to examine various police reports and other statements which the defense desired to use for impeachment; (5) prejudice resulted from the State's failure to offer proof of the defendant's alleged prior inconsistent statements; and (6) the court erred in initially permitting the admission of Leonard White's statement to the police.
The case came to trial on April 29, 1963, and after the prospective jurors had been sworn, Leonard White, the other defendant, entered a plea of guilty.
Leonard White testified on behalf of the State to the following: On the evening of March 14, 1962, at 11:00 or 12:00 p.m., he and the defendant left a tavern and walked to Chicago's South Water Market. The defendant was carrying a shotgun which White had picked up earlier in the evening. On the way toward the market, the defendant "broke the gun down and put something in it." When the two men reached the market, a truck driven by Will Hugh Hutto pulled up to the loading dock. As Hutto was standing on a loading dock, he was approached by the two men whereupon the defendant demanded money of the driver. The driver jumped from the dock and turned toward the men and pulled "something shiny" from his pocket, and as he did so, the shotgun held by the defendant discharged and the blast struck Hutto. The two men left and took the gun to one Johnny Mae Henderson's apartment.
White admitted that he and the defendant went to the South Water Market earlier in the evening at which time the defendant talked to a truck driver but White had no conversation with this driver and did not know what the defendant had said to him. After talking to this driver, the pair returned to the tavern.
The deceased's sister, Colleen Hutto Gochenour, was the State's "life and death witness" who testified that she had seen her brother alive in February, 1961, and had identified him at the morgue on March 15, 1962.
William Lonnie Greene also testified for the State that on the evening of March 14, 1962, he was sitting in his cab waiting to unload when two men knocked on the cab and offered to unload his truck. When he told them that he didn't want to be unloaded, both men left. At a lineup and at trial, the witness identified defendant as one of the men who approached him.
The State offered the testimony of Detective John Loftus who stated that he had talked to Leonard White in custody, and, in the presence of the defendant. White related his version of the crime which was substantially similar to White's testimony on the witness stand. The police officer stated that the defendant took him and another officer to the South Water Market whereupon the defendant related the following: On the evening in question, the defendant and White did approach a driver and asked him if he wished to be unloaded. At this point, the man jumped from the dock, ran, and then turned around and had something shiny in his hand. The defendant testified that at this time, both he and White picked up the shotgun which had been leaning against a building and in so doing the gun was fired and the driver fell to the ground. The defendant denied that he had talked to the witness, William Lonnie Greene. Loftus stated that the defendant told him that he went to the market that night "to commit a robbery."
The defendant took the stand in his own behalf and testified in much the same way as he had related the occurrence to Officer Loftus. He did not know whether the gun was loaded and stated that it was White who carried the shotgun as they walked to the South Water Market. The defendant further testified that the gun was fired after the victim had pulled a knife and lunged toward him in an attempt to stab him. He denied talking to any truck driver on the evening in question.
Vincent Bentivenga, an Assistant State's Attorney, testified that on March 15, 1963, he had talked to the defendant while in custody, and the defendant initially denied any participation in the crime. Later the defendant stated to Mr. Bentivenga that a man had pulled a knife on him at the South Water Market and the gun "just went off."
The defendant first argues that the denial of his petition for a change of venue was reversible error. The petition was presented after the defendant's motion to quash the indictment had been denied and after the jury had been impanelled. Once the court has ruled on a substantive issue such as ruling on a motion to quash, the petition for change of venue comes too late. (People v. Wilfong, 17 Ill.2d 373, 162 N.E.2d 256; People v. Chambers, 9 Ill.2d 83, 136 N.E.2d 812.) The case cited by the defendant, People v. McGlothen, 26 Ill.2d 392, 186 N.E.2d 319, is distinguishable from the instant case since in the cited case the petition was filed before the trial had begun and before the trial court had ruled on any substantive issues.
The fact that the prosecution nolled the manslaughter count of the indictment after the jury had been impanelled and sworn does not constitute reversible error. In People v. Hines, 30 Ill.2d 152, 195 N.E.2d 712, the State's Attorney nolled a narcotics possession count after the jury had been impanelled and after evidence had been heard. The defendant was ...