APPEAL from the Circuit Court of St. Clair County; the Hon.
HAROLD O. FARMER, Judge, presiding.
MR. PRESIDING JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 12, 1973.
The defendant, James Greer, Jr., has brought this appeal from a judgment entered upon his conviction for the offense of murder by the Circuit Court of St. Clair County. The case was tried before a jury. Upon conviction the defendant was sentenced to the penitentiary for a term of from 14 to 45 years.
During the early morning hours of September 22, 1969, the events of this case began to unfold. A female, Yvonne Davis, was having a drink at a lounge in East St. Louis and the defendant came into the lounge and joined with Yvonne Davis in having a drink. The two of them decided to leave the premises and pick up Theresa Dowell, who was a mutual friend and the eventual decedent and victim of the murder.
The defendant and Yvonne Davis left in the defendant's mother's car, a then new 1969 model, picked up Mrs. Dowell and went to the We Three Lounge also located in East St. Louis. At the We Three Lounge Yvonne Davis and the defendant went in and had a couple of drinks, bringing Mrs. Dowell's drinks to her out in the car because Mrs. Dowell was not dressed appropriately to enter the establishment. After about 30 or 40 minutes, the trio, who had been friends for more than a year, left the We Three Lounge and drove to the B & F Lounge, also located in East St. Louis. The time of arrival was at 1:00 A.M. or shortly thereafter. The B & F was not crowded, there being only three other people in the place when the threesome arrived. The lounge contained a Mr. Ben J. Roby, the manager, Clentis Hickman, a patron, and Ailene Stevens, a barmaid. All three in addition to Miss Davis were called as State's witnesses.
The B & F Lounge is located on the south side of State Street in East St. Louis. When the three walked into the bar, they sat at the south end of the bar. The defendant sat next to Mrs. Dowell, with Yvonne Davis sitting next to Mrs. Dowell. The defendant sat facing Mrs. Dowell while Yvonne Davis was talking with Clentis Hickman. Ailene Stevens, the barmaid, was behind the bar. Ben Roby was sitting at the other end of the bar, but had left and was across the room at the stereo; the music was playing.
The evidence is uncontradicted that the decedent had a gun in her purse, a gun the property of defendant which she had pawned and recovered and that there was discussion between defendant and decedent about the gun which defendant wanted. The defendant had turned on the bar stool as had the decedent so that the two were facing with Mrs. Dowell's legs between the defendant's knees and her back toward Miss Davis who was in turn facing toward Hickman. Defendant and decedent had been keeping company with each other for more than a year; they had no argument that evening and were not arguing or raising their voices; no one saw any signs of violence between them. All witnesses heard what they thought was a shot where defendant and decedent were seated. No witness saw the shooting except the defendant who stated that decedent accidently shot herself with it, and that he never touched the gun. No witness testified that he did although Miss Davis testified that decedent said "she had been shot" and that after decedent had walked around the end of the bar and collapsed defendant arose with a gun in his hand but did not know which hand.
None of the other State's witnesses ever saw the gun and the gun was not presented at the trial nor was inquiry made concerning its disposition; the others all testified that they did not at any time see defendant have a gun. Miss Davis took charge of decedent's purse and admittedly removed some of its contents, which she gave to decedent's husband, before eventually delivering a purse to the prosecution which was admitted into evidence on the basis of Miss Davis testifying it was the purse Mrs. Dowell had there that evening. Defendant testified that it was not the purse decedent had and that defendant believed she either had the gun back in the purse or was putting it back in when it was fired. No one else testified it was the purse decedent had there that evening. No one contradicts that it was in her lap and would have been inches from where the bullet entered her body whether fired at close proximity by defendant or by decedent; it apparently showed no powder burns, or bullet hole. Her testimony as to what was said or done immediately after the shooting was contradicted by other State's witnesses. All five gathered around decedent when she collapsed, most were agreed that she stated "I have been shot." She testified that defendant at the time made a threatening remark to her which caused her to flee to the bathroom, but she did not know what those remarks were.
She testified that after decedent had been taken out and placed in defendant's car, by defendant and Roby, to take decedent to a hospital, that defendant returned hammered on the bathroom door and shouted "Come on out, you are next." None of the other witnesses supported this but testified that defendant came back in, paid for the drinks, went to the bathroom door, tapped on it and told her to come on. They denied that he hammered, shouted or made threats against her. Upon defendant's driving away she came out of the bathroom, telephoned defendant's mother and a lady friend asking the latter to send a taxi for her which she did. She then went to the lady friend's home where she remained the rest of the night without further inquiry or report concerning her friend, Mrs. Dowell. No one at any time called an ambulance or reported the incident to the police.
Roby testified decedent said, "He shot me" when she arose and went toward the end of the bar, but when asked, still on direct, to whom she said that, answered, "Well, she didn't say who she said, just said `I was shot' I don't know." He proceeded to testify then that while the witnesses were gathered around decedent he asked defendant "Did you shoot her?" and that defendant answered "I am trying to kill her." When admonished to speak louder he testified, "Exactly I don't know exactly how he said what he said I don't know exactly, but he was talking he said `I am going to kill her' I am going to do something, I don't know the exact words he used." The prosecutor by a question then suggested that defendant had said "I am going to kill her, I am going to shoot her, is that what he said?" to which the witness answered, "He threatened her things like that, words like that." He then testified, "I said Let's get her to the hospital, you shot her" and that he then "caught hold of her. I was trying to help him get out, I didn't see where she was shot. I thought she might have fainted or she got scared or something. I said, Will you take her to the hospital, he said, Yes I will take her to the hospital."
On cross examination he admitted testifying in St. Louis a short time after the incident "I asked what happened did he shoot her and someone said yes." He admitted that he never saw a gun and that in answer to the question "Did you hear James make any statement after the shooting" in a previous hearing, he testified "No, he said this is my thing, something like that. I don't know if he said it is his wife or his woman, I don't know what he said" and admitted that in the previous hearing in St. Louis, he had never in response to the request to testify to what happened, testified to any threats by defendant to decedent and concluded that "He was saying a lot of things; I don't remember exactly what that was" and stated specifically that he never did see defendant with a gun.
Apparently attempting to anticipate defendant's testimony the prosecutor on redirect then asked whether the witness ever heard defendant say "I didn't mean to shoot her; please call the ambulance; please call the police" to which the witness answered "No." There is nothing in the record from which it could even be inferred that defendant ever said "I didn't mean to shoot her."
On direct examination the barmaid Ailene Stevens testified that Roby asked defendant "Did you shoot her" and defendant answered "yes" admitting that after the woman collapsed she was so excited that she did not know what was said, on cross examination. On cross she admitted testifying previously that Roby asked "Did he shoot her" and she then testified "I was so upset I think he said yes."
None of the other witnesses heard the incriminating statements to which Roby had testified although all ...