APPEAL from the Circuit Court of Cook County; the Hon. JAMES
J. MEJDA, Judge, presiding.
MR. JUSTICE CREBS DELIVERED THE OPINION OF THE COURT:
Robert Hudson, herein referred to as defendant, and Harold Riggins were tried by jury in the circuit court of Cook County for the crimes of murder and attempted robbery, resulting in a verdict of guilty on both charges as to each defendant. The jury fixed Hudson's punishment at death on the murder conviction and the court sentenced him to death. This appeal is by Hudson alone from the murder conviction and death sentence.
Two of defendant's claims relate to the manner in which the jury was selected. He first contends that the court erred in ruling that the State was entitled to peremptory challenges. This claim is based upon the following circumstances. Prior to August 11, 1967, the applicable statute provided as follows: "Each defendant shall be allowed 20 peremptory challenges in capital cases, 10 in all cases in which the punishment may be imprisonment in the penitentiary and 5 in all other cases. The State shall be allowed the same number of peremptory challenges as all of the defendants." (Ill. Rev. Stat. 1965, ch. 38, par. 115-4(e).) On August 11, 1967, the provision was amended so as to read as follows: "A defendant tried alone shall be allowed 20 peremptory challenges in a capital case, 10 in a case in which the punishment may be imprisonment in the penitentiary, and 5 in all other cases; except that, in a single trial of more than one defendant, each defendant shall be allowed 12 peremptory challenges in a capital case, 6 in a case in which the punishment may be imprisonment in the penitentiary, and 3 in all other cases. If several charges against a defendant or defendants are consolidated for trial, each defendant shall be allowed peremptory challenges upon one charge only, which single charge shall be the charge against that defendant authorizing the greatest maximum penalty." Ill. Rev. Stat. 1967, ch. 38, par. 115-4(e).
It will be noted that prior to the amendment the statute specifically provided that the State should be allowed the same number of peremptory challenges as all of the defendants, while the amended section omitted that provision. However, in the section dealing with the selection of alternate jurors the amended section provided that "Each party shall have one additional peremptory challenge for each alternate juror." (Emphasis supplied.) Ill. Rev. Stat. 1967, ch. 38, par. 115-4(g).
Defendant argues that the omission of the provision giving the State the right to exercise peremptory challenges deprives the State of that right. A problem of statutory construction is involved. Both the defendant and the State have referred us to certain rules of statutory construction which we need not set forth in detail here. While such rules may be helpful in certain circumstances in construing a statute it is well established that such rules are merely an aid for determining the intent of the legislature and must yield when the intent of the legislature is otherwise indicated. (Sutherland, Statutory Construction, sec. 1932, 3d ed. 1943.) The situation in this case is quite similar to that in People ex rel. Cason v. Ring, 41 Ill.2d 305. In that case an amendment to the Election Code in 1967 had removed certain language granting registered voters the right to apply to the county clerk for the erasure of names of unqualified voters for the 1968 general election. The court reviewed the history of the legislation and noted that such a procedure had been in effect for 25 years prior to 1968 and was available in 1970. The court held, citing numerous authorities, that an act of the legislature would not be construed so as to lead to absurd, inconvenient or unjust consequences and that a construction would be adopted which it was reasonable to presume was contemplated by the legislature. Again referring to other authorities, the court in Ring noted that in a proper case words omitted by the legislature may be supplied. The court in that case construed the amendment so as to provide for the erasure right in 1968 although the literal reading of the statute precluded the exercise of that right. Here, while a literal reading of the amendment indicates that the State had no right to exercise peremptory challenges, we are satisfied that the omission of language in the amendment giving that right was an oversight on the part of the legislature and cannot have been intended. Our conclusion is fortified by the facts that the State's right to peremptory challenge had existed for many years; that the legislature expressly provided for an "additional" challenge for an alternate juror (Ill. Rev. Stat. 1967, ch. 38, par. 115-4(g)); and by the fact that in 1968 the right was expressly restored. (Laws of 1968, page 43.) We are therefore of the opinion that the trial court properly ruled that the State had the right to exercise peremptory challenges.
The defendant's second contention with respect to the manner in which the jury was selected is based upon Witherspoon v. Illinois 391 U.S. 510, 20 L.Ed.2d 776, 88 S.Ct. 1770. The court in Witherspoon held that a death sentence cannot constitutionally be executed if imposed by a jury from which have been removed for cause those who, without more, are opposed to capital punishment or have conscientious scruples against imposing the death penalty. (Bumper v. State of North Carolina, 391 U.S. 543, 20 L.Ed.2d 797, 88 S.Ct. 1788.) We have reviewed the entire voir dire examination of the prospective jurors and find that 21 prospective jurors were excused on the ground that they had religious or conscientious scruples against imposing the death penalty. We do not believe it necessary to recite here the details of that examination. We are satisfied that a large number of such prospective jurors were excused because, "without more," they stated that they had such scruples. The circumstances present in People v. Speck, 41 Ill.2d 177, and other cases in which we have held the examination proper under Witherspoon standards, are not present here. While this does not require the vacation of the judgment of conviction, the sentence of death cannot be permitted to stand.
Defendant also presents a double jeopardy claim and a contention that he was denied a speedy trial. Both of these claims arise because of a prior mistrial which was declared because of the inability of the jury to reach a verdict. It appears that defendant was arrested on May 22, 1967, and confined without bail. The first trial commenced on September 15, 1967, and the order declaring the mistrial was entered on September 21. The second trial resulting in the verdict and judgment now under consideration commenced on November 15 and defendant's motion for discharge under section 103-5 of the Code of Criminal Procedure was denied on November 14. Prior to the decision of this court in People v. Gilbert, 24 Ill.2d 201, it was the rule that the statutory four-month period commenced to run anew from the date of the disagreement of a jury. (People v. Jonas, 234 Ill. 56, 60.) However, in Gilbert, where we held that the defendant's right to a speedy trial had not been violated, we stated that "Our decision in this case does not mean that in every instance of a mistrial, the full statutory period begins to run anew, regardless of the length of time that has already elapsed. The overriding consideration is the constitutional right to a speedy trial, and where delay is not attributable to the defendant, that right is not measured by aggregating successive periods of four months each." (24 Ill.2d at 204-5.) Thus, although defendant was tried within four months after the disagreement of the jury in the first trial, that fact is not conclusive. The record shows here that counsel for the defendant took care to insure that he did not waive the defendant's right to a speedy trial by moving for a continuance or expressly consenting to a continuance. However, the record also shows that defendant's counsel did not object to a continuance of the cause. At one point in the proceeding where counsel for the co-defendant also requested a continuance defendant's attorney stated, "Your Honor, as far as I am concerned, what I shall ask the court to do is set this matter for trial at some future date, and then, in addition, I am trying to avoid coming in on Wednesday." Counsel was then asked if it was agreeable with him to set the matter down for a certain date and he replied that it was and that any date was agreeable with him which was agreeable to the court and the State. Defendant was tried within 55 days following the mistrial and within 177 days of his incarceration. There were problems arising out of the death of the attorney who had represented a co-defendant and problems as to whether a severance should be ordered, and a delay of 55 days was not unreasonable. Defendant has made no claim of actual prejudice by reason of the delay and we find no evidence of prejudice in the record. Under all the circumstances of this case we are of the opinion that neither defendant's right to a speedy trial under the constitution nor his statutory right to be tried within 120 days was violated.
Defendant's claim of double jeopardy also arises out of his retrial following the disagreement of the jury and the mistrial. At the second trial several witnesses testified for the State who had not testified at the first trial. The most significant of these witnesses was Carl McFadden, who had been indicted for the crime with defendant and Harold Riggins. As we will point out later in this opinion the testimony of McFadden was an important part of the State's case. Defendant contends that the presentation of this additional evidence at the second trial violated defendant's right not to be placed in double jeopardy. In support of that claim the defendant refers to authorities holding that where the prosecution fails to present to the jury sufficient evidence at a first trial, resulting in a verdict of acquittal, the State cannot obtain a new trial by demonstrating that they have additional evidence. These authorities are not relevant to the issue here, since the first trial did not result in a judgment of acquittal. Principal reliance is placed upon Downum v. United States, 372 U.S. 734, 10 L.Ed.2d 100, 83 S.Ct. 1033. In that case, after a jury had been selected and sworn, the prosecutor moved that the jury be discharged because one of its key witnesses was not present. The court granted the motion and two days later, when the witness had been located, the defendant was placed on trial and convicted. The Supreme Court reversed the judgment of conviction holding that the defendant's plea of former jeopardy should have been sustained. That case is likewise readily distinguishable from the present case. In the Downum case, the court pointed out that ever since 1824 it had been agreed that there were occasions where a second trial may be had although the jury impaneled for the first trial was discharged without reaching a verdict and without the defendant's consent. In its opinion the court referred to the case of a mistrial where the jury is unable to agree as the classic example of such cases. That was exactly the situation here. The jury was discharged and a mistrial declared, not because of the prosecutor's plea that he needed time to obtain additional evidence, but because the jurors were unable to agree. Under these circumstances, we know of no rule, and counsel for defendant has produced no authority to that effect, holding that the prosecution is precluded from introducing additional evidence at a second trial. In our opinion defendant's constitutional right not to be placed twice in jeopardy for the same offense was not violated.
Defendant also argues that the evidence was insufficient to establish his guilt and claims that certain identification testimony was improperly admitted. These claims require a consideration of the evidence at the trial.
The victim of the murder was killed during the armed robbery of his coin and gun shop. A customer who was present at the time, Ludwig Debus, testified that he observed two men enter the store. One of them was armed with a revolver and announced that it was a holdup. Debus testified that the defendant was the man with the gun. An alarm went off and defendant stepped behind the counter and fired three times at the deceased. The defendant then faced Debus, who begged him not to shoot. Defendant walked out the door, looking at Debus over his shoulder. From the time of the announcement of the holdup until the time defendant left the store about 30 seconds elapsed. About 50 minutes or an hour later Debus saw the defendant in the store in the custody of a policeman. On cross-examination he testified that he was unable to identify any of the other suspects in the case.
Carl McFadden testified that the co-defendant, Harold Riggins, called him saying that he "got something up" and that it would be worth a couple of thousand dollars. McFadden told Riggins that he would consider it, and a short time thereafter Riggins called him again and McFadden told him that he would go along. Riggins told him that "a dude" would pick him up, and a short time after the call, the defendant drove by and picked him up in a car. McFadden talked to the defendant about the proposed crime and the defendant told him that it was a coin shop and that he could arrange to get rid of the coins. They drove to a residence where they went in and found Riggins and another person identified only as "John." Riggins told McFadden and the defendant that it would be a push-over because there was only one old fellow in the store. Riggins outlined the plan, which was for McFadden and the defendant to go into the store and when Riggins appeared in the door it would be the signal for the defendant to announce a stick-up. Before proceeding to the coin shop they went to a drug store where they bought some cotton, some tape and some gloves. Riggins told McFadden that he should wear gloves because he would have his hands all over everything in the store. They bought the supplies and the defendant put the cotton in his jaws, apparently to change his appearance, and Riggins put the tape over his mustache. They then proceeded to the coin shop and McFadden and Hudson entered the shop. After they had been in there a couple of minutes, Riggins came to the door and brandished a shot gun and defendant pulled his revolver and announced a stick-up. McFadden saw the man behind the counter reach under the counter and saw defendant commence firing at him. They then fled in the car and were pursued by another car. The defendant tried to break the side window of the car with his pistol, and being unsuccessful, broke the rear window out with his shot gun. The car which was pursuing them then slowed down. The chase ended at a deadend street and McFadden, Riggins and the defendant fled on foot.
On cross-examination McFadden testified that he had previously been convicted of three felonies and that he was a former narcotics addict. He also admitted that he had been indicted for the murder of the coin shop owner but that the charge against him had been dismissed. He admitted that his attorney had made a deal with the prosecutor to dismiss the charges against him if he testified for the State, but stated that the prosecutor told him that they expected him to testify truthfully.
Klemens Lorentz testified that he saw a suspicious man approaching the coin shop and that after this man entered the shop he heard an alarm go off. He then saw three men emerge from the shop and identified the defendant as one of the men. He saw the ...