Appeal from the Circuit Court of Cook County; the Hon. SIDNEY
JONES, Judge, presiding. Affirmed.
MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.
Rehearing denied December 18, 1969.
The defendant, Edgar Chaffin, was indicted and tried for the murder of Thomas Westbrook. During Chaffin's jury trial the State's motion for a mistrial was granted over his objection. When his case, which was reassigned to the judge from whom this appeal is taken, was called for trial he asked to be discharged on the ground that his trial had been improperly terminated, that he had been in jeopardy and that this barred his prosecution. Ill Rev Stats 1967, c 38, § 3-4(a)(3). The court granted his petition and ordered him discharged. It is from this order that the State appeals.
The testimony heard at the abbreviated trial disclosed that in the early morning of February 25, 1967, a friend who had been driving two men home from work asked Chaffin to drive them the remainder of the way. Chaffin agreed and the men, James Slajchert and Donald Gardner, entered his car. They lived in Blue Island, as did Westbrook. Chaffin told them that Westbrook had cheated him, that he was going to get even and asked Slajchert where Westbrook's house was located. He displayed a gun and said he intended to kill Westbrook. They drove to Westbrook's house but it was dark and they left.
As they rode on Slajchert noticed two girls in a restaurant whom he knew, and the auto stopped so that he could speak to them. Westbrook was in the restaurant and Slajchert reported this to Chaffin. Chaffin told Slajchert to send Westbrook out on the pretense that he would pay him some money he owed him. Slajchert re-entered the restaurant and delivered the message. Westbrook left the restaurant and Slajchert remained inside. Westbrook approached the car saying that he heard Chaffin had some money for him. Chaffin said that he had, pulled his gun and shot him three times. Chaffin and Gardner drove on but Gardner, who had met Chaffin and Slajchert the first time that night, got out of the car a block or two away.
Westbrook staggered back into the restaurant and collapsed on the floor. Police officers arrived in a few minutes and spoke to him briefly. After speaking to him they approached Slajchert who was sitting in a booth. Westbrook was taken to a hospital where he died two days later.
In addition to this testimony, certain other background information will be helpful in understanding the circumstances which led to the declaration of a mistrial:
1. Chaffin and Slajchert were indicted; Gardner was not. The assistant State's attorney informed the jurors that Slajchert and Gardner would testify for the State and that neither would be prosecuted.
2. When the police spoke to Westbrook in the restaurant he told them that he had been shot by Chaffin. He said that they should ask Slajchert about it that Slajchert was sitting in one of the booths.
3. Shortly after he arrived at the hospital Westbrook gave the police a statement which was reduced to writing and signed by him. The written statement repeated in greater detail what he had said at the restaurant.
4. Before the trial started Chaffin's attorney moved to suppress the inculpating statements made by Westbrook. He also requested an order upon the State not to offer the statements in evidence or to refer to them during the trial. The statements did not qualify as dying declarations and the State did not object to the motion or the order.
5. In his opening statement Chaffin's attorney told the jury that Chaffin did not shoot Westbrook. He said: "I am not saying that Gardner is the one who shot the deceased. I do not know. I believe the evidence will disclose that this boy [Chaffin] did not and that Gardner knows who did. . . ."
After Gardner had testified for the State, Slajchert was called to the stand. During his cross-examination the following took place:
Chaffin's attorney: "Officer Pizza came into that restaurant and he had a conversation with ...