Appeal from the Circuit Court of Champaign County; the Hon.
BIRCH E. MORGAN, Judge, presiding. Affirmed.
TRAPP, P.J., delivered the opinion of the court.
Rehearing denied and supplemental opinion December 18, 1969.
Defendant was found guilty of murder by the verdict of a jury. His motion for a new trial was denied and defendant appeals. No issues are raised as to the indictment or the instructions.
It is urged that defendant was not proven guilty beyond a reasonable doubt, particularly in the light of the circumstantial evidence of guilt as measured with the alibi evidence submitted, and that the trial court erred (1) in refusing a mistrial for prejudice of a juror, (2) in excluding evidence that another person had been arrested for the crime, (3) in admitting the evidence of flight by the defendant, (4) in admitting into evidence certain exhibits, and, that the State's Attorney made improper remarks in his opening statement and improper argument to the jury. Finally it is urged that a new trial should have been allowed because of newly discovered evidence.
The deceased, Plankenhorn, was employed as a night janitor at Rick's IGA Store, a food market in Champaign. At 3:31 a.m. on the morning of August 7, 1967, a report of fire at Rick's was received by the Champaign Fire Department. The source of the report remains unidentified. Firemen arrived within two or three minutes of the report and found an intense fire throughout the building. The body of the victim was found some six feet from the door of the market when the firemen were able to enter an hour or more later. Examination disclosed three gunshot wounds, two of which were capable of causing death.
A .32-caliber copper jacketed bullet was removed from the body during an autopsy. On August 24, 1967, an automatic pistol was found beneath the rear seat of an abandoned automobile located about two and one-half blocks from Rick's. Ballistic tests demonstrated that the autopsy bullet was fired from this gun. On August 23, 1967, a number of shells with copper jacketed bullets were found in a ditch near the store.
It appears that during the month of September pictures of this gun were shown on television and printed in the area newspapers. Shortly thereafter the witnesses, Wittig and Turner, reported to the Champaign police department concerning purchases and sales of the gun which would tend to place possession of it in the defendant at the time of the shooting.
Wittig was a city fireman and a licensed gun dealer. Turner was and had been for some years both a waiter at the Urbana-Lincoln Hotel and a janitor at the Busey State Bank. It appears that he made a hobby of collecting guns and bought from Wittig from time to time. Their testimony at the trial was to the effect that Wittig had purchased the weapon at a gun show in Indiana and thereafter sold and delivered it to Turner about the last of June, 1967, and that Turner had sold it to the defendant during the month of July. The respective sales involved $30 and $35, and installment payments were made. No record of the dates of payments were kept by Wittig or Turner concerning either sale. Defendant was employed as a bus boy at the Urbana-Lincoln Hotel. Turner testified that the gun was delivered to the defendant in the basement of the Busey State Bank. On September 23rd a police detective, Gentille, met Wittig and Turner at the hotel and thereafter went with Turner into the kitchens to look for the man to whom Turner had sold the gun. Gentille testified that when he and Turner were about three feet distant from defendant, Turner said that this was the man to whom he had sold the gun; that Gentille then told defendant that he wanted to talk with him and that defendant asked what about, and that the witness stated that the conversation was to be had at the State's Attorney's office. He testified that defendant asked and received permission to get his coat and thereupon ran, and he, Gentille, chased defendant for two blocks without success. The witness brought the defendant back from Louisiana some six weeks later.
Defendant was a member of a singing group known as the Golden Stars. On August 6th the group went to Chicago where they sang at two churches. The essence of the alibi evidence is that the group did not return to Champaign until 3:00 a.m. or afterwards. Most members of the group testified to the time as a matter of recollection generally, without references to timepieces. Rose Thadison, defendant's mother, said they returned after 3:00 or 3:30 a.m.; Harold Thadison, defendant's stepfather, fixed the time as around 3:00 a.m.; Louella Goins, defendant's sister, said the return was a little after 3:00 a.m., Joanna Taylor, not related, stated that the return was around 3:00 a.m. David King, defendant's cousin, fixed the return as possibly as early as 2:45 a.m. and William Hampton, no relation, thought the return might have been as early as 2:30 a.m. Defendant says that it was 3:10 a.m. when they arrived at home.
Defendant, his mother, stepfather and sister prepared coffee (said to take ten minutes), drank a cup of coffee or two and went to bed. The Thadison home where defendant resided is described as being less than two blocks from the market. None of the family heard of the activities incident to the fire and learned of it the next morning.
This alibi testimony is measured as against defendant's proximity to the crime scene and the nature of the fire. Investigation of the latter led to an official conclusion that the fire in the market had been set with cans of charcoal lighter fluid scattered in various parts of the building. The battalion chief who arrived with the first fire equipment expressed the opinion that the fire, as he first saw it, had been going for twenty-five or thirty minutes if one assumed the use of flammable fluid. One McDade on patrol as a private security man, testified that he passed the market between 2:30 and 2:50 a.m. and saw no sign of fire or smoke. One Millidge, a route man for a nearby bakery, checked his loaded truck and passed the market at a time estimated at 3:30 a.m. He observed no evidence of fire, but saw two persons walking north on Randolph street. We cannot ascertain whether the individuals were men or women.
Defendant urges that the alibi evidence stands uncontradicted and that such fact is sufficient to create a reasonable doubt of guilt. It seems to be the theory presented that establishing defendant's possession of the gun is circumstantial evidence on an issue of identification. He cites The People v. Guardino, 13 Ill.2d 58, 147 N.E.2d 338. In that case the "circumstantial evidence" referred to by the court arose through a witness' purported identification of an automobile subsequently traced to the defendant. Such evidence was there measured by uncontradicted testimony which would establish an alibi. Here the sale of the gun to the defendant is a matter of direct testimony. Defendant's identity is not established by circumstances. In The People v. Wheeler, 5 Ill.2d 474, 126 N.E.2d 228, it was similarly contended that the verdict could not stand because there was no direct impeachment of alibi witnesses. It was held that a conflict of evidence does not require reversal, but that the issue is one of credibility for the jury. People v. Habdas, 94 Ill. App.2d 330, 236 N.E.2d 731. The ...