Appeal from the Circuit Court of Cook County; the Hon. HERBERT
C. PASCHEN, Judge, presiding. Judgment reversed and cause
remanded with directions.
MR. JUSTICE BURKE DELIVERED THE OPINION OF THE COURT.
Defendant was found guilty by a jury of the crime of murder and was sentenced to a term of 14 years to 20 years in the penitentiary. He appeals.
About 3:15 a.m. on January 20, 1966, Walter Barber, the deceased, was shot by the defendant at a diner located at 1150 South Kedzie Avenue in Chicago. The deceased had been sitting at the service counter in the diner at the time the defendant entered shortly before 3:15 a.m. The defendant seated himself at the counter, placed his head on the counter and allegedly fell asleep. A short while later one of the other patrons in the diner, a man named Lee, slapped the defendant on the back and said, "Hi, James!" Defendant, who was either spun around on the counter stool by the slap or who spun himself around on the stool, thereupon drew a revolver.
The manager of the diner, who testified for the People, stated that defendant, after he had been slapped on the back, had words with Lee and another of the patrons in the diner, and that he drew the revolver and fired a shot into the floor. The deceased, who was seated nearby, moved his arm and the defendant told him to keep his hands on the counter. Defendant then walked over to the deceased, placed the gun to his head, and stated, "You look like one of those fellows that jumped me last week." The witness testified that the deceased thereupon rose from his seat at the counter and attempted to get out the door, but that defendant fired a shot past his head and told him to sit down. The witness further testified that the deceased continued to try to reach the door, that the defendant kept pushing him and telling him to "stay back, before I shoot you," and that when the deceased kept advancing, the defendant shot him in the body, paused and then shot him twice more. The defendant left the diner, returned shortly and fired two more shots, one at the deceased and the other at the record player. The deceased was then helped out of the diner by another man. The manager testified that at no time did the deceased speak to the defendant, nor did the deceased have any weapon in his hand.
Chicago Police Officers Fritz and Klomfar testified that at approximately 3:30 a.m. on the morning in question they received a radio communication of a burglary at the apartment of the defendant. When they arrived at the apartment they were told that someone had broken into the defendant's apartment and had stolen his brother-in-law's revolver. The officers testified that they located a revolver in the apartment, that it smelled as if recently fired, and that defendant explained its presence in the apartment by stating that "whoever took the gun must have used it and brought it back."
The officers testified that they contacted headquarters concerning the registration of the gun and were informed by Sergeant Doll that the defendant was wanted in connection with the shooting at the diner. They transported the defendant to the diner, and as the defendant alighted from the squad car, about a dozen persons at the scene shouted, "That is him, that is James!" The officers testified that they did not get the identification of any of those persons who allegedly shouted defendant's name as he alighted from the police vehicle.
Police Sergeant Doll and Officer Kalis were permitted to testify for the People, over objection of the defendant that their names did not appear on the list of witnesses submitted to the defendant before trial. Officer Kalis testified that he received a radio communication of a man shot at the diner in question. He testified that he proceeded to the location and found the deceased, still alive, sprawled in an automobile nearby. He stated that the police sergeant arrived shortly afterwards, that a police ambulance was called for, and that when it was found that none was available, the sergeant drove the deceased to the hospital in his police vehicle. The officer testified that he searched the person of the deceased before he was taken to the hospital but did not find a weapon. He also testified that he made a visual search of the automobile in which the deceased had been lying and did not see a weapon.
Police Sergeant Doll testified that after he arrived at the scene of the shooting, he attempted to secure a police ambulance to transport the deceased, who was alive, to the hospital for treatment, and that when it was learned that none was available, he drove the deceased to the hospital in his squad car. On the way to the hospital the sergeant asked the deceased what had occurred and the deceased replied that "he didn't know the man, just walked in and shot him for no reason." The testimony of the sergeant concerning the statement by the deceased was objected to by the defendant, but the statement was received into evidence as a dying declaration. The sergeant further testified that he searched the person of the deceased and found no weapon, but that he did not search the automobile in which the deceased was lying when the sergeant arrived on the scene.
The coroner's pathologist testified that the deceased died some time after having been admitted to the hospital, of gunshot wounds in the abdomen.
The defendant testified that about two weeks prior to the shooting he had been severely beaten by the deceased and two other men. He stated that he saw the deceased earlier the evening of the shooting in the company of the two men who were with him the day the defendant was beaten, and that he armed himself as a result. The defendant further testified that he drew his revolver in the diner after Lee had slapped him on the back and after he observed the deceased in the diner also. He stated that the deceased approached him and went into his pocket for a knife or a razor. Defendant told the deceased to "back off" and as the deceased continued to approach, the defendant fired five shots, the first into the air, the second into the record player and the third into the deceased's leg as an attempt to halt his approach. The fourth shot was fired into deceased's midsection, and after firing the fifth shot the defendant ran from the diner. Defendant testified that he then caught a taxi for home and that his nephew had notified the police that his apartment had been burglarized.
Mrs. Evelyn Goodwin, a student at the American Institute of Engineering and Technology, testified as a defense witness and stated that she was present in the diner when the shooting occurred; that she observed the defendant standing near the door to the diner and the deceased standing at a stool near the counter; that she heard the defendant say to the deceased that the deceased and his partners would not "jump him" as they had before; that she observed the deceased reach into his pocket and start to draw out a knife; and that the defendant then shot the deceased. The witness further testified that she heard two or three more shots fired and that she then fled from the diner.
Defendant first contends that the statement made by the deceased while being transported to the hospital after the shooting, as testified to by Sergeant Doll over objection of the defendant, was improperly admitted into evidence as a dying declaration inasmuch as all the elements necessary for its admission as an exception to the hearsay rule were not present. We agree.
[1-3] The law attending the admissibility as evidence of dying declarations is firmly established in this State. In People v. Odum, 27 Ill.2d 237, at ...