Appeal from the Circuit Court of Cook County; the Hon. JOHN C.
FITZGERALD, Judge, presiding. Affirmed.
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.
The defendant, John McFadden, was tried before a jury in the Circuit Court of Cook County, Criminal Division, upon a three-count indictment charging that he murdered one Sam Collins. The defendant was found guilty and was sentenced to a term of not less than twenty nor more than forty years in the Illinois State Penitentiary. An appeal was taken to the Illinois Supreme Court and that Court transferred the case to this Appellate District.
The defendant, on appeal, assigns as errors the following: (1) the trial court denied motions for a directed verdict in favor of the defendant at the close of the State's case-in-chief and at the close of all the evidence in the presence of the jury to the prejudice of the defendant; (2) the defendant was represented by incompetent counsel; (3) improper conduct of the prosecuting attorney; and (4) improper remarks by the trial judge to the jury.
The record reveals that Cleveland McGee, an employee of Poe and Sons Supermarket at 3658 West Cermak Road, Chicago, testified that at 7:30 p.m. on March 20, 1967, a customer whom he identified as the defendant, entered the store, pulled out a gun, and announced it was a "stick up." McGee stated that the defendant told him and a man he knew as Larry (Sam Collins) to lay down on the floor while he, the defendant, took the money in the cash register. While they were both on the floor a short was fired, but neither one was hit. They were then made to march back to the rear of the store and McGee said that the defendant told him to get into the washroom. Sam Collins then asked the defendant for a drink of water. The defendant permitted him to get a drink, but told him to make it quick. The next thing witness McGee heard from the washroom was the sound of falling bottles and then two shots. McGee came out of the washroom, saw the defendant leaving the store, and heard Sam Collins say, "I am shot; call the police." McGee testified that he looked in the cash register and saw that it was empty. At that point James Coleman came in the store and subsequently his mother called the police from his apartment above the store.
James Coleman testified that he lived above the grocery store. He said that he looked in the window of the store and saw a man with a gun and wearing a long black coat. Coleman stated that he also saw Larry (Sam) Collins and another man. Mr. Coleman further testified that he saw the man with the gun walk to the back of the store with the other two people in front of him. One of the two men went into the washroom and Larry (Sam) Collins went around the meat counter to a sink. All of a sudden, Coleman said, "everything started falling off the shelves and everything and I heard about two, three shots and I ran." After the man in the black coat left the store Coleman went in. He said he saw blood on the door.
Reverend Poe, the owner of the grocery store, testified that when he left his store on the morning of March 20, 1967, there was approximately $37 in currency and about $20 in coin in the register. When he returned that evening, after the murder, the money was missing.
The defendant, John McFadden, took the stand in his own defense. He testified that he had been in Poe's store over a thousand times and had seen McGee frequently. The defendant said he knew the decedent as Larry and had spoken to him once or twice. On the day in question he had One Hundred Twenty-seven Dollars on his person when he went to Poe's store. He had a gun in his belt which he had earlier removed from the purse of a woman friend to prevent her from getting "into trouble with it." Larry (Sam) Collins and McGee were in the store when he entered. The defendant asked Larry (Sam) if he could use the washroom and when the deceased asked him if he knew where it was he reminded Larry of a previous occasion when he saw Larry and McGee stealing cigarettes from the store's vending machine. The defendant said that when he went to the washroom he saw a knife in Larry's hand. He further testified that Larry stabbed him in the face with the knife while McGee grabbed him from behind. He said that after Larry had stabbed him in ten different places he got his gun and fired twice at Larry, who then slumped to the floor. Afterwards, the defendant said, he staggered out of the store and went home to seek medical aid. He denied that he intended to or did rob the store; that he had ordered Larry and McGee to lie on the floor; that he shot a bullet over their heads, or that he said it was a "stick up."
William McFadden Sr., the father of the defendant, testified that when he saw his son about 8:00 p.m. on the evening in question, he observed his son was wounded in numerous places and he rushed him to a hospital.
The defendant's fifteen-year-old brother testified that at some time prior to the shooting he had told his brother, the defendant, that James Coleman had beaten him up. He said that his brother left their home, on that occasion, found Coleman and fought with him.
A friend of the defendant testified that Reverend Poe had been "cut up" by the deceased in 1961 and that the deceased's reputation for violence was bad.
We first consider the contention that the defendant was prejudiced by the denial of the motions for directed verdict in open court and in the presence of the jury. The defendant correctly states that "[a] fair trial contemplates that the jury will, alone, fulfill its duty of determining the facts, and it is not the province of the judge, in a criminal case, to express by word or indicate by conduct, in the jury's hearing, any opinion upon the facts." People v. Sprinkle, 27 Ill.2d 398, 403, 189 N.E.2d 295, 298. The defendant argues that jurors are ever watchful of the attitude of the trial judge and his influence upon them is necessarily and properly of great weight, thus his lightest word or intimation is received with deference and may prove controlling.
The record reveals in the case at bar that after the State announced that it has rested its case-in-chief the following occurred:
Mr. Lowe: (defendant's counsel) "Your honor, at this time, the defense would like to make a motion for a directed verdict on the basis of the State ...