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People v. Davis

MARCH 11, 1969.

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

CHARLES DAVIS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. JAMES J. MEJDA, Judge, presiding. Affirmed.

MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.

Charles Davis was charged in a two-count indictment with the murder of Lorraine Perkins. After a plea of not guilty, a jury found the defendant guilty as charged, and he was sentenced to the penitentiary for a term of not less than 14 nor more than 25 years.

Joseph Leonard Perkins, son of the victim, was 13 years old, and attended high school. He testified as follows: On October 2, 1965, at about 5:45 p.m., he was lying on the bed reading in his home at 4300 South Ellis Avenue, and his mother was talking on the telephone in the other room. Charles Davis, the defendant, came into the bedroom and picked up a butcher knife from the mantel. Joseph's mother came to the bedroom door; the defendant approached her; she turned and the defendant followed her out toward the entrance door; Joseph followed them both and saw the defendant stab his mother in the back, then go out the door, taking the knife with him. He stated that nothing was said by any of them during this time, and that he then went to the desk clerk of the apartment hotel and asked him to call the police.

Joseph testified that he had known the defendant for about two years; that he had seen him in the apartment before, but that the defendant did not live there. He stated that he got along fine with the defendant; that he did not see him bring the knife into the apartment, but assumed it belonged to defendant since it did not belong to Joseph or his mother.

The testimony of defendant is in direct conflict with that of Joseph Perkins. The defendant testified that he had known Mrs. Perkins since 1957, that he saw her every day, and had stayed all night with her on Saturday, October 1; that he lived with her. He testified that on Sunday morning some friends, the Browns, came in with whisky, beer and wine, and that they all drank; that at noon they all went to the Browns' apartment where they stayed and drank until around 5:00 p.m., when Mrs. Perkins, Brown and the defendant went to her apartment building. The defendant and Mrs. Perkins argued about his coming upstairs, and Mrs. Perkins insisted that he come to her apartment. The boy, Joseph, then came in and the defendant started to leave, at which time Mrs. Perkins "got excited" and started swearing at him and told her son to leave. When the defendant again started to leave, Mrs. Perkins hit him on the head with a bottle; she grabbed another bottle and hit him on the neck; he grabbed at her and twisted her around, and she took a knife from the refrigerator and hit him with it. While he was holding her around the waist and they were scuffling she asked him to turn her loose, that she had cut herself. He released her after she threw the knife down, and he tried to stop the bleeding of her hand. She told him to leave, that she was going to call the police and did not want him there because they had been arrested before. Defendant left, returned after about 15 minutes, and saw that she had cleaned up the house. He left again, and after a half hour he telephoned the hotel and learned that Mrs. Perkins was dead. He then went to Fort Wayne, Indiana, where he was apprehended and brought back to Chicago. He denied intentionally stabbing Lorraine Perkins.

In this court defendant contends: 1) that he was not proved guilty beyond reasonable doubt; and 2) that the sentence should be reduced. His first argument is with reference to the testimony of Joseph Perkins. The Illinois rule pertaining to the testimony of a child under the age of 14 years is that where an objection is imposed to the competency of a child the question is a matter resting largely in the discretion of the trial court. People v. Watkins, 405 Ill. 454, 91 N.E.2d 406. The intelligence and understanding of a child witness are the controlling factor as to competency, and not the age. People v. Tappin, 28 Ill.2d 95, 190 N.E.2d 806. In the case before us no objection was made as to Joseph Perkins' testimony.

In Knab v. Alden's Irving Park, Inc., 49 Ill. App.2d 371, 199 N.E.2d 815, the court said at page 384:

"In all cases the trial court must determine finally, upon all circumstances, whether the child is competent to testify. 2 Wigmore, Evidence § 507 (3d ed). The trial court must also determine what degree of necessity exists as to whether or not the child's testimony should be placed before the jury."

In the Knab case the court cited and quoted from an article entitled The Problem of the Child Witness, 10 Wyo L Rev 214 221, 222 (1956), where it was stated:

"The trend toward relaxation of the rules governing the competency of child witnesses demonstrates a growing appreciation by the courts of the fact that in many instances the testimony of a child is practically indispensable. . . ."

In evaluating the testimony of Joseph Perkins, even the cold record clearly indicates that he was a competent witness. Under the circumstances, no preliminary examination of Joseph by the court was necessary.

The defendant also raises the argument that the evidence of Joseph Perkins is unbelievable, basing it on the fact that Joseph testified that the defendant stabbed his mother without any argument or any words whatsoever being exchanged between them. The defendant had testified concerning the drinking bout in the morning at the home of the deceased and the continued drinking in the afternoon at the Browns. There is no testimony in the record as to what occurred at those meeings, whether there was any quarreling between defendant and the deceased.

Defendant argues that it is improbable, impossible and unbelievable that without any words and without any provocation he stabbed the deceased, yet the defendant would have this court believe that without any provocation, the deceased engaged in a violent dispute with the defendant, hit him over the head with a bottle, immediately afterwards again hit him with another bottle, and — according to defendant's testimony — seized a knife. Either of these accounts appears incomprehensible unless we knew what had occurred between the defendant and the deceased during the entire day. All of that information is not in evidence, and the matter of assessing the credibility of the conflicting accounts is one for the jury to determine. Based on the record we cannot say that the jury acted unreasonably in choosing to believe Joseph's testimony instead of the defendant's. Joseph Perkins' testimony was clear and consistent that after the deceased was stabbed and fell to the floor he immediately went downstairs to call the police; that when he returned to the apartment he found his mother lying on her stomach, bleeding; that she said nothing to him, and the police arrived at once.

On the other hand, the defendant testified that after the stabbing he took an old dress, wet it with cold water and tied it around the wound, stating that the deceased was wounded under her arm. He stated that she told him to get out, that she was going to call the police, and he left. According to his testimony he returned about 15 minutes later and ...


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