APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS
T. DELANEY, Judge, presiding.
MR. JUSTICE HAYES DELIVERED THE OPINION OF THE COURT:
On 14 July 1970, Cevel Arnold, defendant-appellant (hereafter defendant), was indicted by the Cook County grand jury, under general number 70-2018, for the murder of Howard Smith. Defendant pleaded not guilty. On 12 August 1970, after a jury trial, defendant was found guilty of the lesser included offense of involuntary manslaughter. He was sentenced to a term of not less than 6 nor more than 10 years. This is defendant's appeal from that conviction.
The evidence disclosed that, shortly before midnight on 8 April 1970, one Howard Smith was shot and killed in a tavern known as Smitty's Lounge, located at 3713 West Roosevelt Road in Chicago. Defendant testified that he arrived at Smitty's Lounge some time between 9:00 and 9:30 P.M. on the night of the incident. Shortly after he arrived, he was at the bar speaking to one Ricky Brown when he was approached by a man known to him only as "James." He had seen "James" around the lounge before, but he did not know his last name nor where he lived. A transaction ensued between defendant and "James" wherein defendant loaned "James" fifteen dollars and received a handgun as security. Defendant thereupon handed the gun to Ricky Brown who, in turn, put it under the bar. Whether Ricky Brown witnessed the transaction between defendant and "James" is not clear from the record.
While the details vary, the evidence indicates that, at a later time that same night, defendant and the victim and one John Earl became involved in an argument at the rear of the lounge. The nature of the argument is not apparent from the record, but it led the three men to go out the rear door of the lounge. John Smith (the owner of the lounge) and Willie Brown (an employee) who were then working just outside the rear door, both testified to the fact that the argument between defendant and the victim became physical, requiring intervention by John Smith. Defendant then went back inside the lounge, retrieved the gun that he had given to Ricky Brown earlier that evening, and returned to the outside of the rear door. Shortly thereafter the victim reentered the lounge, closing the rear door behind him. Defendant pushed the door open, fired one shot, and the victim fell to the floor with a bullet wound in his back, from which he subsequently died.
Defendant testified that he got the gun in order to scare the victim from "going to get his gun," since he had been "known to pull a gun before"; that he had called for the victim to stop; that John Smith then "grabbed the gun from my hand and the gun went off." John Smith and Willie Brown agreed that they had indeed grabbed the gun from defendant's hand and taken it away from him, but that they had done so only after he had fired the weapon. No one saw a gun in the victim's possession.
On this appeal, defendant relies on two allegedly reversible errors. Both occurred during the prosecutor's final argument to the jury.
Defendant's initial contention is that it was error for the prosecutor to comment upon the failure of the defense to call "James" as a defense witness. The prosecutor's comment was as follows:
"I say the conflicts the defendant's testimony raises are incredible in the light of the clear and convincing evidence we have presented in our case. Where is James? Why is the man who gave him the gun not here? Why isn't he here? James, without a last name. Where does James live * * *?"
There was no objection by the defense to this comment.
Defendant relies on People v. Munday (1917), 280 Ill. 32, 117 N.E. 286, in support of his contention that this comment constitutes reversible error. In Munday, the prosecutor commented upon the failure of the defense to call certain witnesses who had been jointly indicted with the appellant. Beyond this, however, the prosecutor stated to the jury that it was the appellant's duty under the law to produce these witnesses since they could have substantiated the theory of the defense. The Illinois Supreme Court held that the prosecutor's argument was substantially prejudicial for two reasons. The court stated the general rule as follows:
"While there is some apparent conflict in the authorities, the general rule is that the omission or failure of a defendant in a criminal prosecution to call as witnesses those who could testify of their own knowledge to material facts raises no presumption of law that if called they would have testified unfavorably to him, but the jury may consider his failure to produce or to endeavor to produce such witnesses as a circumstance in determining his guilt, provided it is manifest that it is within the power of the accused to produce such witnesses and that such witnesses are not accessible to the prosecution." [Citations.]
Since in Munday the missing witnesses were under indictment, and therefore either in custody or at liberty on bail, it did not appear to the court that they were any less accessible to the State than they were to the defendant-appellant. The court went on to say that the prosecutor went "further than merely offending against the general rule" by asserting that it was the duty of the defendant to call certain witnesses, while, in fact, the law imposes no such duty upon him.
In the present case, the assistant State's Attorney made no suggestion that defendant had any duty to produce the man who gave him the gun. Nor does it appear that the man named "James" was accessible to or could even be identified by the State.
A fact situation closer to the present one is seen in the case of People v. Carr (1969), 114 Ill. App.2d 370, 252 N.E.2d 912. In Carr, the prosecutor, in his remarks to the jury, argued that if the defendant-appellant's story were true, he would have produced certain witnesses to corroborate his testimony. The court, relying on People v. Munday (1917), 280 Ill. 32, 117 N.E. 286, stated that "the rule is that the State may not in closing argument draw adverse inferences from a defendant's failure to call a particular witness unless it is manifest that the witness is more accessible to the defendant than to the State." The court then inferred that defendant's father, a friend, and the friend's unnamed girl friend were more accessible to defendant than to the State. In the present case, defendant knew what "James" looked like, ...