Appeal from the Circuit Court of Macon County; the Hon. DONALD
W. MORTHLAND, Judge, presiding. Reversed and remanded for a new
CRAVEN, P.J., DELIVERED THE OPINION OF THE COURT.
This is an appeal from a conviction of murder upon trial by jury. Defendant was found guilty and sentenced to serve forty to sixty years in the penitentiary.
The defendant assigns as error the admission of a confession into evidence on the grounds that it was not voluntary error in the People's opening statement, in that statements of fact were made which were never received into evidence, and prejudice by the length and detail of the opening statement. Further, the defendant asserts there was error in the denial of his request for a change of counsel. He also asserts failure of the People to establish a corpus delicti, improper instruction of the jury, and improper closing argument of the People to the prejudice of the defendant.
Defendant, Johnnie Weller, and his half brother, Phillip Guthrie, were arrested and indicted for the murder of Howard Richard Goodin, a Decatur barber. Weller was 17 years old at the time of his arrest and had completed the first semester of his junior year in high school.
Goodin, a Decatur barber, was reported missing, having last been seen by his sister on July 25, 1967, when he was driving his bronze 1966 Chrysler automobile. A week and a half or two weeks thereafter, his sister, her husband and Detective Derr of the Decatur City Police, entered and searched his apartment but found nothing to account for his disappearance.
Suspicion focused on Johnnie Weller and his half brother, Phillip Guthrie. Detective Derr inquired as to these men of a friend of theirs and learned the friend had received a postcard from defendant mailed from Florida. Derr telephoned Florida police searching for Weller and Guthrie. About a week later, in Decatur, Derr arrested Guthrie in a car with Weller's brother. The next day Weller was arrested without a warrant by Decatur City Police.
This arrest, prior to any then known offense and without a warrant, was early on a Saturday morning around 5:00 a.m. on August 19, 1967. Defendant was questioned by the city police at about 9:00 a.m. on the day of his arrest. He refused to talk to the police. Questioning resumed an hour later and continued for about two hours. Again that evening, at 11:00 p.m., defendant was awakened by a police officer and told to give a statement. He refused. Once more during the night he was awakened by a police officer who, defendant testified, swore at him when defendant again refused to make a statement.
During his confinement defendant's mother visited him four times. Detective Derr talked to her at least three times on the telephone. On Sunday, August 20, 1967, defendant's father and mother visited him. Just prior to this visit they were told by Derr that defendant "could possibly be charged . . . [with] murder"; that if he made a statement "he could probably be brought up on a lesser charge . . . with a light sentence." The father related this conversation to defendant. Also, Derr on that day told the parents he was not going to "bother" with Guthrie but "was going to concentrate on" defendant.
Mrs. Weller (defendant's mother) visited him on Monday morning. Just prior to her visit Derr told her it would "be easier" on defendant if he would make a statement. Derr told her he could not tell defendant this, but that she could, and that if he would make a statement maybe the prosecutor could make allowances for his age. She told these things to defendant. He told her he was going to talk to Derr. Immediately after his mother's visit defendant told Derr he wanted to talk about the case. Defendant testified that when he told Derr this, Derr told him it would "go easier" on him. The police then drove defendant to a cornfield to which he directed them, and where the body was found. The decomposed remains of the victim, Howard Richard Goodin, were found in the cornfield with hands and feet tied together with a rope. Upon return, a written statement was prepared from an interview with police and an assistant State's Attorney, but defendant refused to sign it. This statement was the confession introduced at the trial.
Defendant filed a motion to suppress his alleged written confession based upon unlawful incarceration, age, prior illness, continual questioning by the police and violation of his constitutional rights. The court heard and denied this motion but found that his incarceration in the county jail constituted unlawful detention.
A motion for determination of competency was heard and denied.
Defendant requested a change of lawyers, which was denied.
Upon trial defendant was found guilty and sentenced.
We have reviewed carefully and at length the record in this case and considered the alleged error. Inasmuch as this case must be reversed and remanded for a new trial, for reasons hereinafter discussed, it is not necessary nor would any useful ...