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People v. Cummings

JULY 30, 1970.




Appeal from the Circuit Court of Macon County; the Hon. FRANK J. GOLLINGS, Judge, presiding. Affirmed.


A jury found defendant guilty of aggravated battery in the shooting of one Caplinger. Post-trial motions and a petition for probation were denied, and a sentence of one to five years was imposed.

Defendant's testimony raised the issue of self-defense. Issues raised on appeal are that defendant was not proven guilty beyond a reasonable doubt, and in the alternative, that the sentence imposed was excessive and should be reduced.

The principal locale concerned is a rural resort on the Sangamon River known as the River Rat Club. Caplinger was the owner and proprietor of the resort, which consists of a large building with adjacent areas where persons may reside in trailers for weekends and vacations. Defendant's estranged wife was then living with one Robbins in a trailer on the premises.

The wife had left defendant in June, 1968, and in October commenced divorce proceedings. Apparently, thereafter, but at times not clearly shown in the record, defendant went to the resort upon two occasions to talk with his wife, but each time she refused.

Defendant was employed in Decatur and living at the home of his parents on January 29, 1969. His testimony as to preceding events is that pursuant to some arrangement, defendant drove to a town some 35 miles distant to meet a friend and fellow employee. For reasons not explained in the record, he took a suitcase which he kept packed and under the bed at the home of his parents. At about 5:30 p.m., he met his friend at a tavern where he had beer — in quantities stated to be two to five glasses. It appearing that the acquaintance had other engagements, defendant returned to Decatur. At a time and place not described, he determined to go to the River Rat Club to talk with his wife with a view of settling their affairs, either through divorce or reconciliation.

Following such decision, he recalled that it had been said that Caplinger sometimes carried a .38 revolver and had said that he would take care of any trouble that occurred. The record does not show to whom this was said, or to what trouble reference was made. Defendant thereafter took his .38 revolver from the packed suitcase and put it in a holster on his right side. The record shows that he placed between 20 to 35 rounds of ammunition in his pocket, it being explained that the sack which contained such broke and that he did not want the loose rounds in the suitcase. We note that on cross-examination, defendant testified that he had been a member of the River Rat Club until he got a new boat; that he had known Caplinger for some years and that Caplinger had never threatened him, had never told him not to come to the premises, and that there had never been trouble between them.

While the evidence is not precise, between 9:00 and 9:30 p.m., defendant entered the Club building. He procured a can of beer for himself and one for Caplinger. Present in the main room and watching television were Caplinger, the latter's wife, Virginia Walters, Caplinger's daughter, defendant's wife, Luanna, Lloyd Robbins and John Rehfelt. With the exception of the defendant, Caplinger and Rehfelt, those present were engrossed in television and could give but little testimony as to what occurred.

Those testifying upon the point agreed that defendant twice asked his wife to go to his car to talk with him and that twice she refused. Caplinger then said to defendant, in effect, "I don't want any trouble with you." Defendant denies this. It is agreed that defendant then asked Caplinger to go outside and that they did so.

Caplinger's testimony is that upon going outside to the car, defendant put his hand under his coat and said, "I am going to use it" — but Caplinger said, "You are not going to use it out here," and that he had a gun, too. He then turned to go into the building, where he had a shotgun behind the door. At the door he reached for the shotgun and turned to find that defendant had entered immediately behind him and was standing at the head of a pool table; that he laid the shotgun on the pool table and said, in substance, "Are you crazy — I don't want any trouble, I want you to get out." Caplinger further testified that he did not think there was a shell in the chamber of the shotgun; that he seized it to bluff the defendant and that he laid the weapon on the pool table when he found defendant in the room, as he would not fire it in the room where others, including children, were present. Defendant drew, or started to draw his revolver, and Caplinger lunged toward him, managing to grab one arm, and the parties went to their knees and defendant shot him.

Defendant testified that when they were outside, he, defendant, said he intended to see his wife and that Caplinger could not protect her; that the latter said that he was not protecting her, turned and went into the building and that at the door Caplinger turned on him with the shotgun in his hand. Defendant recalls "going for his gun"; that he believes that he was hit from behind and recalls nothing about what happened until he came to after the shooting.

Immediately after the shooting, defendant was grabbed and held on the floor by Rehfelt and Robbins and made to stay there until the sheriff's men arrived. In this process, defendant received some sound blows to the face, a badly split lip and the web of Robbins' finger was caught in the hammer of the revolver, making a bloody wound. The ambulance and sheriff's men were summoned.

Defendant argues that under the circumstances it is unbelievable that Caplinger would turn his back on defendant and return to the building and that defendant would follow carrying a cigar and a can of beer in his hands. Those items were found on the floor by the pool table.

He contends that the testimony of Rehfelt is most accurate, and points to the statement that Caplinger reached for the shotgun and then the trouble started. The balance of the record, however, shows the testimony of Rehfelt to be that Caplinger turned away, put the shotgun down and that ...

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