APPEAL from the Circuit Court of Cook County; the Hon. MARVIN
E. ASPEN, Judge, presiding.
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:
The defendant, Chester Holmes, Jr., was indicted on October 29, 1971, for the murder of Wash Harris. After a trial by jury a verdict was entered on May 19, 1972, finding him guilty as charged. The court sentenced him to a term of 17 to 25 years in the Illinois State Penitentiary. He now appeals his conviction to this court.
The record discloses that the deceased, Wash Harris, and his wife, Muriel, owned a two-flat building at 7236 South Euclid Avenue in Chicago. He and his family occupied the first floor apartment therein. The defendant, Chester Holmes, Jr., along with his family, occupied the second floor apartment as tenants. On August 15, 1971, according to the testimony of Muriel Harris, wife of the deceased, she, her husband, and two of their children returned home from evening church services at 10 P.M. While she and the children entered their first floor apartment, her husband went upstairs apparently to collect the month's rent. From her first-floor bedroom, Mrs. Harris could hear a conversation between her husband and the defendant coming from the upstairs corridor, although she could not hear what was being said. After about 5 or 10 minutes she heard someone's footsteps go from the hallway to the bedroom and back again. Mrs. Harris then testified that she heard four or five gunshots. She ran out into the hallway and saw her husband staggering down the stairs. He exclaimed: "Honey, Mr. Holmes shot me," and repeated it. She helped him into the living room of their apartment, where he collapsed.
Larry Cosey, a 16-year-old stepson of the deceased, testified that he witnessed the defendant shoot his father through a second-floor window while sitting on a next door neighbor's front porch. He said he immediately ran to the rear of the apartment building and entered the family's apartment through the back door. He ran through the house and encountered his mother and father in the front area of the apartment. He heard his father tell his mother, "Honey, Mr. Holmes shot me."
The police arrived in 2 or 3 minutes. After attending to the deceased, they went upstairs, questioned and arrested the defendant. A revolver with five spent cartridges was recovered from under a bed mattress in defendant's apartment. In the opinion of a ballistics expert, whose findings were stipulated to at trial, a bullet recovered from the body of the deceased was fired from the weapon.
A number of witnesses testified on behalf of the defendant as to his good character and reputation. The defendant took the stand and denied that he shot Wash Harris and denied that he had the gun in his possession on the night of the incident.
Five grounds for reversal of defendant's conviction are asserted. It is contended that (1) the court erred in granting defendant only 10 peremptory challenges during the voir dire, since 20 are required by statute in a "capital case"; (2) in refusing to hear defendant's motion to dismiss the indictment and quash the venire prior to trial; (3) in denying defendant's motion to suppress as evidence the gun seized in a search of defendant's apartment incident to arrest; (4) in refusing to declare a mistrial and in not effectively admonishing the jury after the wife of the deceased cried audibly in the courtroom; and (5) the defendant was not found guilty beyond a reasonable doubt because of the lack of credibility of the eyewitness testimony.
We first address ourselves to the contention that the defendant did not receive the number of peremptory challenges to which he was entitled. Section 115-4(e) of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 115-4(e)) provides in pertinent part:
"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 * * *."
The Illinois murder statute at the time provided: "A person convicted of murder shall be punished by death or imprisonment in the penitentiary * * *." (Ill. Rev. Stat. 1971, ch. 38, par. 9-1(b).) Had the defendant here been subjected to the possibility of receiving the death penalty for the murder conviction, there is no doubt he would have been entitled to 20 peremptory challenges. The State indicated at the outset, however, that it was not seeking the death penalty upon conviction. The question then is whether the fact that the State declares its intention not to seek the death penalty renders the proceeding no longer a "capital case" under the terms of the Illinois statute involved.
• 1 Defendant claims that the classification of an offense for purposes of determining the proper number of peremptory challenges cannot be changed by any declaration that the prosecuting attorney may make, and cites Kerley v. State, 89 Tex.Crim. 199, 230 S.W. 163. We find the Texas court's construction of the statute involved in Kerley unnecessarily rigorous and inapplicable here. In the instant case the jury had no control over sentencing, was not instructed regarding the penalty to be imposed, and could not have returned a verdict prescribing the death penalty at its discretion. (Compare Kerley v. State; also compare Lee v. State, 31 Ala. App. 91, 13 So.2d 583; Caesar v. State, 127 Ga. 710, 57 S.E. 66.) We feel that since the State declared its intention not to seek capital punishment, and capital punishment was in fact not threatened upon conviction, the case was no longer "capital" under a sensible construction of the term as used in section 115-4(e) of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 115-4(e)). (Cf. State v. Montgomery, 363 Mo. 459, 251 S.W.2d 654.) There was thus no error in limiting defendants peremptory challenges to 10.
It is next claimed that the court erred in not entertaining the defense's pre-trial motion to dismiss the indictment and quash the venire prior to trial. The motion alleged that the defendant was a black citizen and that the Grand Jury voting the indictment and the venire which was available to be called was selected contrary to statute in such a manner that it failed the statutory objective of achieving a cross section of the community. The record shows that the motion was filed on May 10, 1972, the day before a jury was selected, pursuant to sections 114-1(a)(4), 114-1(b), and 114-3 of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 114-1(a)(4), 114-1(b), and 114-3). These provisions read in relevant part:
"§ 114-1 Motion to Dismiss Charge.
(a) Upon the written motion of the defendant made prior to trial before or after a plea has been entered the court may dismiss the indictment, information or complaint upon any of the following grounds:
(4) The indictment was returned by a Grand Jury which was improperly selected and which results in substantial injustice to the defendant;
(b) The court shall require any motion to dismiss to be filed within a reasonable time after the ...