APPEAL from the Circuit Court of Cook County; the Hon. MEL R.
JIGANTI, Judge, presiding.
MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Defendant, James Higgs, was tried before a jury for the offense of murder. He was found guilty and sentenced to 15 to 30 years in the penitentiary. He appeals and contends:
1. That the prosecution knowingly used false evidence to obtain his conviction; and
2. That defendant was denied a fair trial in that:
a. The cross-examination of defendant was improper and prejudicial;
b. Prejudicial hearsay evidence was improperly admitted into evidence;
c. The trial court intimated to the jury that defendant was present when the shooting occurred; and
d. The prosecutor's closing argument was prejudicial.
The deceased, Joseph King, was shot shortly after midnight on August 16, 1969. His body was found lying on the sidewalk on the west side of Carpenter Street just south of 63rd Street. King was a junior member of the Six-Tray Disciple Gang; defendant was its vice-president and a senior member. Three key prosecution witnesses were also members of the gang.
Roscoe Roberts testified that he and Joe King were walking down Carpenter Street at approximately midnight. They were going to find the person or persons who had "knocked out" their friend "T.T." When they reached 63rd and Carpenter, they encountered defendant who was drinking wine under elevated train tracks in an alley behind a liquor store. Roberts asked defendant if he knew who had knocked out "T.T.," and defendant responded "No, forget it." Roberts and King then proceeded to walk across to the east side of Carpenter Street. Defendant shouted at them to come back, and, when they said no, defendant exclaimed "You ain't coming back, huh, punks?" Roberts testified that he then heard shots fired, turned and saw defendant, with a gun in his hand, standing near the alley on the west side of the street. King staggered and commenced running. Roberts then ran up to defendant and swung at him, but was thrown to the ground by police officers who had immediately arrived on the scene. Roberts got up and ran around the block in an effort to find King.
On cross-examination, defense counsel asked Roberts at what time he met King on August 15 prior to the shooting. The prosecutor objected and requested a conference outside the presence of the jury. He argued that defense counsel was endeavoring to bring forth evidence that King had a gun in his possession at 3 P.M. on the afternoon of August 15. The prosecutor informed the court that he, defense counsel and a public defender investigator were present the day before trial when Roberts was being interviewed, and that Roberts told defense counsel that King had a gun. The prosecutor argued that this testimony would be irrelevant to the issues. The court, however, ruled that the jury should hear all the testimony. In the presence of the jury, Roberts answered that King did not have a gun, and denied making the statement in the presence of the prosecutor and investigator. Defense counsel subsequently called the investigator, who testified that, at the meeting with the prosecutor and defense attorney, Roberts had stated that King had a .22 caliber gun on August 15.
James Walsh, another Six-Tray Disciple member, testified that he was standing alone in front of the liquor store when he heard the shots. He ran around the corner and saw friends on the street who were shouting that defendant had shot King. He also saw defendant with a gun in his hand. On cross-examination Walsh stated that there were approximately 10 policemen on the scene when he saw defendant with the gun. He also stated that he neither saw Roberts swing at defendant, nor saw the police throw Roberts to the ground.
Larry McCaskill, also a member of the gang, testified that he heard shots, ran around the corner from the liquor store and saw defendant pointing a gun at Roberts and King. On cross-examination this witness testified that King had a gun in the evening prior to the shooting, but that it was only a cap gun which they had unsuccessfully tried to convert into a zip gun.
Chicago police officers testified that no weapons were found on King's body. One officer testified that, when he arrived at the alley on the west side of the street, 20 to 30 persons were standing around. As he got out of his squad car, someone in the crowd shouted, "He is the one that did the shooting," indicating a group of four men standing near the squad car. These four men, one of whom was defendant, were searched, but no gun was found on defendant. Four persons from the crowd then attacked defendant, shouting that he had shot King. The court ...