APPEAL from the Circuit Court of Madison County, the Hon. FRED
SCHUMAN, Judge, presiding.
MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
Following a jury trial in the circuit court of Madison County, Charles Earnest Nicholls was found guilty of murder and sentenced to the penitentiary for a term of 75 to 125 years. Nicholls has appealed directly to this court alleging numerous errors and constitutional violations, including inter alia, charges that the State failed to establish his guilt beyond a reasonable doubt; that his written confession was improperly and unconstitutionally obtained; that both a written confession and an oral admission were improperly admitted into evidence; that the court permitted the admission of improper evidence by the State and excluded relevant and material evidence of the defendant; that the court erred in the giving and refusing of instructions; and that the comments of the prosecutor in the closing argument were so inflammatory and prejudicial that the defendant was deprived of a fair trial.
Sometime between the hours of 4:30 P.M. on February 3, 1965, and 7:45 A.M. on February 4, 1965, Aaron Liggett was shot and killed at his home near the Arlington Golf Course in Madison County, Illinois. On February 7, 1965, the appellant was arrested at his mother's home in Granite City, Illinois and he subsequently confessed to having committed the crime with Earnest Nicholls, his father, and a Paul Kelley.
Nicholls was indicted for murder and on his motion was granted a severance from his father and Paul Kelley, who had also been named by the grand jury. According to the confession, Nicholls and Paul Kelley, his adopted brother, had shot and killed Aaron Liggett at about 2:30 A.M. or 2:45 A.M. on February 4, 1965, for which they were paid $150 each by the appellant's father, Earnest Nicholls. The confession stated that they had driven to Liggett's house at about 7:30 P.M. or 8:00 P.M. on February 3, 1965, and following a short conversation with Liggett they left and went to the Evergreens Tavern in Granite City. On the way to the tavern Kelley told Nicholls that Earnest Nicholls wanted Liggett killed for "messing around" with the appellant's stepmother and that Earnest Nicholls had purchased the .22 caliber pistol, which Kelley had shown the appellant earlier. Kelley and Nicholls were at the Evergreens Tavern until it closed and then at Nicholl's suggestion they returned to Liggett's home. When admitted by Liggett the defendant Nicholls who stood behind Kelley, shot him four times in the face. Liggett fell, but, as the confession related, he appeared to be still breathing. Thereupon, Kelley then reloaded the weapon, and fired six times, Nicholls believed, the bullets apparently striking Liggett in the chest. Nicholls then removed the victim's wallet from his trousers and took $12 from it. The next day, Nicholls stated, he and his father burned Liggett's wallet.
After confessing, the appellant led Louis Bowman, the chief investigator for the Madison County Sheriff's Office, to where he had said the wallet had been burned. Remains of the charred wallet and its contents were recovered and the remains and the confession were admitted into evidence.
The appellant in contending that he was not proved guilty beyond reasonable doubt, complains that there was a basic conflict in the evidence between his confession and his alibi. He had introduced the testimony of several witnesses to support the alibi, that on the night of the killing he had been at the Evergreens Tavern in the company of his sister and her boyfriend from approximately 9:00 P.M. until it closed and that he left the tavern only once at about 11:00 P.M. to pick up his mother, who returned with him and stayed with the party until closing time. Then, he said, he and his sister proceeded to Johnny Lewis' tavern in Madison, Illinois, where they stayed until it closed. After leaving that tavern, according to his evidence, he went to his mother's home to sleep but when he was not allowed to stay as he was intoxicated, his sister took him to his father's house where he slept until morning.
Nicholls denied that Kelley was with him at either of the taverns and the conclusion invited by this testimony was that he could not possibly have committed the crime with Kelley on February 4, 1965, at 2:45 A.M., as related in his confession, or at any other suggested time of Liggett's death.
The appellant also claims that there was a conflict between a pathologist's testimony, who appeared for the prosecution, regarding the wounds received by the deceased and the confession he gave of the crime. Further, Nicholls argues his confession was never substantially corroborated.
It is the function of the jury to weigh testimony, judge the credibility of witnesses and determine factual matters in debatable sets of circumstances (People v. Woods, 26 Ill.2d 582, 585). This court will not substitute its judgment for that of a jury nor disturb the finding of a jury unless the finding is palpably contrary to the manifest weight of the evidence. (People v. Peto, 38 Ill.2d 45, 49; People v. Solomon, 24 Ill.2d 586, 591.) The appellant did disavow his confession and offered testimony which was inconsistent with statements of the confession, but the confession was corroborated in important part by the locating of the remains of the victim's wallet at the place where the appellant in his confession stated it could be found. Any appearing discrepancy between Nicholl's confession and the physical evidence was for the jury to consider in assessing the weight and credibility to be given the confession. (People v. Hester, 39 Ill.2d 489, 511.) From a review of the entire record it is clear that the jury's finding of guilt was justified.
Nicholls complains, too, that an oral confession was improperly admitted in evidence against him without a preliminary hearing on the question of its voluntariness. During the testimony of Captain Bowman, concerning the evidence of the remnants of the burned wallet and its contents, the witness stated that Nicholls had told him where the wallet was and, when it was located, said: "This is the wallet that I took from the pants of Aaron Liggett." It is argued that this was an oral confession and that it could not be admitted without a preliminary hearing on the question of voluntariness. However, two hearings by two judges had been had on the voluntariness of the written confession given by the appellant prior to the testimony of Captain Bowman as to this statement by the appellant. In the written confession, which preceded the oral statement in question, the appellant said that he had taken the wallet from the deceased and that he and his father had driven to "Sunset Hill" and burned it. We do not believe that under these circumstances an additional hearing was required.
Complaint is also made by the appellant that Captain Bowman's testimony concerning his incriminating statement was improper and prejudicial, because the appellant was taken by surprise as he had not been given a list of witnesses to the confession as is provided for by Section 114-10 of the Code of Criminal Procedure. Ill. Rev. Stat. 1967, ch. 38, par. 114-10.
It is not necessary to consider whether the statement concerned constituted a confession, for the objection now presented was not made at trial and under these circumstances it must be held that the direction of the statute, if applicable, was waived. See People v. Seno, 23 Ill.2d 206; People v. Hubbard, 38 Ill.2d 104.
All of the witnesses to Nicholls' written confession testified at the trial concerning his statement save Captain Bowman. Because of this Nicholls now urges that the admission of the confession into evidence, where every witness to the statement was not called at trial, was improper. However we do not consider that section 114-11 of the Code of Criminal Procedure (Ill. Rev. Stat. 1967, ch. 38, par. 114-11) requires that the State at trial must present again all of the witnesses to a confession who appeared at the pretrial hearing at which the confession was found to have been voluntary. Though "the circumstances surrounding the making of the confession may be submitted to the jury as bearing upon the credibility or the weight to be given to ...