APPEAL from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County;
the Hon. SIDNEY A. JONES, JR., Judge presiding.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:
Defendant, Edgar Chaffin, was indicted for the murder of Thomas Westbrook and his trial by jury commenced in the circuit court of Cook County. During the proceedings the State moved for a mistrial which was allowed over defendant's objection. When the case was called for retrial, defendant filed a plea of autrefois acquit and former jeopardy, which was allowed. The State appealed and the appellate court affirmed. (115 Ill. App.2d 1.) We granted leave to appeal.
The testimony of the State's witnesses indicated that in the early morning of February 25, 1967, the defendant was driving two men, James Slajchert and Donald Gardner, home from work. Chaffin told them that Westbrook had cheated him and that he was going to get even, displayed a gun and said he intended to kill Westbrook. As they passed a restaurant Slajchert saw two girls he knew and asked Chaffin to turn around and go back. Chaffin went back and parked in the alley behind the restaurant. Slajchert went into the restaurant, saw Westbrook and returned to the car to tell Chaffin. Chaffin told Slajchert to send Westbrook out on the pretense that he would pay him some money he owed him. Slajchert returned to the restaurant and gave the message. Westbrook left while Slajchert remained inside. As Westbrook approached the automobile, Chaffin pulled his gun and shot him three times. Chaffin and Gardner pulled away but Gardner, who had met Chaffin and Slajchert for the first time that night, got out of the car a short distance away. Westbrook staggered back into the restaurant and collapsed on the floor. Police officers arrived in a few minutes and spoke to him briefly. Then they approached Slajchert who was sitting in a booth and took him into custody. Westbrook was taken to a hospital where he died two days later.
Both Chaffin and Slajchert were indicted for the murder. Chaffin's attorney moved to suppress all statements made by deceased subsequent to the shooting. He also requested an order directing the State not to offer in evidence the statement made by deceased at the hospital, or to refer to either statement during trial. Because neither statement qualified as a dying declaration, the State did not object and the motion was allowed. In his opening statement the prosecutor informed the jurors that Slajchert and Gardner would testify for the State and that neither would be prosecuted. Defense counsel, in his opening statement, informed the jury that Chaffin did not shoot Westbrook, and further stated: "I am not saying that Gardner is the one who shot the deceased, I do not know. I believe the evidence will disclose that this boy (Chaffin) did not and that Gardner knows who did * * *."
Both Gardner and Slajchert testified for the State. It was after the following cross-examination of Slajchert that the State moved for a mistrial:
"DEFENSE COUNSEL: Officer Pizza came into that restaurant and he had a conversation with Thomas Westbrook, did he not?
WITNESS: I don't remember.
DEFENSE COUNSEL: And then he came over to the table and said `Where is Slajchert' or `Who is Slajchert', did he not?
WITNESS: I don't remember whether it was asked by Sergeant Pizza or not. I think it was another officer.
DEFENSE COUNSEL: A police officer came up to the table and said `Where is Slajchert' did he not?
WITNESS: He said, `Who is Slajchert?'
DEFENSE COUNSEL: `Who is Slajchert' and you identified yourself then for the first time, is that right?
In the in camera proceedings which followed this cross-examination, the prosecutor moved for a mistrial. After a lengthy discussion by the prosecution, defense and the ...