Appeal from the Circuit Court of Pike County; the Hon. RICHARD
F. SCHOLZ, JR., Judge, presiding. Affirmed.
Plaintiff appeals from judgments for the defendants entered following the verdict of a jury in an action for wrongful death. Post-trial motions were denied and plaintiff appeals. The jury found in favor of plaintiff and counterdefendant upon Grubb's countercomplaint for personal injuries. No appeal is taken from the judgment on such verdict.
It is conceded that Grubb (hereinafter called the defendant) shot the decedent, James Schnepf, and the issue before the jury was whether the shooting was in self-defense. The action against the City of Barry is upon the theory that Grubb, mayor and acting chief of police of the City, was an agent of the City acting within the scope of his employment at the time of the shooting.
Upon appeal plaintiff urges that the court erred in refusing to direct a verdict for plaintiff, that the verdict is contrary to the manifest weight of the evidence, that the court erred in refusing to admit into evidence a photograph of the decedent taken after his death, and that the court erred in permitting a physician to testify that defendant suffered a broken nose. No issue is raised on instructions.
Decedent was aged 19 years and is described as being six feet tall, weighing 175 pounds, and physically strong. He was usually employed in farming and manual labor. Defendant is described as being 76 years of age and in poor physical health.
Plaintiff contends that defendant had made threats to kill decedent and that the killing was in revenge.
The jury was instructed that defendant, by virtue of his office, was a conservator of the peace, in substantially the language of chapter 38, § 7-5, Ill Rev Stats 1965. The relevant language of the instruction is:
". . . a peace officer is justified in using force likely to cause death or great bodily harm only when he believes that such force is necessary to prevent death or great bodily harm to himself."
In terms of self-defense he is held to the same standard as a private person. Chapter 38, § 7-1, Ill Rev Stats 1965. Whether danger of great bodily harm is actual or apparent does not depend upon an assailant's use of a deadly weapon or actually having one in his possession. People v. Brumbeloe, 97 Ill. App.2d 370, 240 N.E.2d 150; The People v. Motuzas, 352 Ill. 340, 185 N.E. 614, and The People v. Turner, 385 Ill. 344, 52 N.E.2d 712.
A prelude to this tragedy occurred on the evening of October 30, 1966, which plaintiff urges is relevant upon the ultimate issue. In the late afternoon or early evening of this date, defendant stopped a car driven by decedent who was then accompanied by his brother, Joseph, aged 22, and witnesses, Sparrow and Franklin, each aged 18 years. Defendant charged that decedent had ignored a stop sign, which he denied. Defendant testified that decedent and his brother got out of the car and that they pushed and shoved him, that he went to his car to get a "billy," that the brother, Joseph, jerked the "billy" away and decedent hit him in the face. Eyewitnesses at a nearby filling station testified to seeing the decedent and his brother fighting with defendant, but did not see the "billy." Decedent's companions testified that defendant got the "billy" and hit decedent on the shoulder, that the "billy" was taken away and that decedent pushed or shoved defendant into a fence some six feet distant, and that defendant's injuries were thus incurred. Later that evening, decedent and his brother were brought to the City Hall where they were arrested by the sheriff and the deputy. The evidence is that decedent started to run and that the sheriff's men had to fight him to the ground to place handcuffs on him. During the melee, defendant was hit or kicked in the face. There is testimony that decedent insisted that defendant also be arrested at that time for hitting him with the "billy." Some weeks later the brother, Joseph, pleaded guilty to kicking the deputy sheriff in the face.
There is conflicting testimony as to whether the defendant was striking or attempting to strike decedent with a cane while the sheriff and deputy were struggling to put handcuffs on decedent. Plaintiff's witnesses, Garner, aged 18, and Hodgson, aged 17, testified that at the time of the arrest of decedent, they heard defendant say that decedent had given him an awful beating and that he would carry a gun in his car and shoot him.
At about 1:30 a.m. on November 6, 1966, Dale Smith, a State policeman then residing in Barry, was awakened by a car with noisy occupants. He recognized one voice as that of the decedent. Smith testified as to personal harassment both his police cruiser and his personal car had been splashed with paint, refuse thrown in his yard and obscenities shouted at his family. Shortly thereafter he heard several shots fired. He went to his police car, waited until he saw the other car and followed it. He called by radio to the police communication center to ask for another trooper and requested the center to call the Barry police. Dale Christianson, the Barry nightwatchman, was called and subsequently was requested by Smith to pick up the defendant at his home.
Defendant and Christianson ultimately followed the car which was driven by Owen Brown accompanied by decedent and Dennis Franklin to a point where it was stopped by Smith, whose car blocked the road. Smith approached the Brown car with drawn revolver and took Brown to the patrol car. Defendant remained at the rear of the Brown car, some 25 feet distant, holding a shotgun. Christianson stood to the left rear of the squad car. Smith testified that upon previous arrests decedent gave trouble, would resist arrest and would fight officers.
After Brown was given a ticket, decedent took over driving the Brown car. Smith drove away, followed by Christianson and the defendant. A block distant they discovered that decedent was following without headlights. Christianson stopped and decedent stopped behind the Barry police car the testimony varies from a few feet to 30 feet distant. Christianson walked back to the Brown car and the defendant stood by the right front door of the city car. Decedent and his companions got out of the car to talk with Christianson. Without more, decedent started to move away from the others toward the defendant. Smith, who had stopped around the corner, couldn't say whether decedent was walking rapidly or running toward the ...