APPEAL from the Circuit Court of Peoria County; the Hon.
CALVIN R. STONE, Judge, presiding.
MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
This is an appeal by the defendant, Arthur L. Seiber, from convictions for attempt murder and the unlawful use of weapons following a jury trial. He was sentenced to concurrent terms of imprisonment of not less than 5 nor more than 15 years for the attempt murder and 364 days for the unlawful use of weapons.
At the trial, the evidence adduced conclusively established that the defendant shot John Prunty. The only issue raised concerning the evidence is whether the act of shooting Prunty was proven beyond a reasonable doubt to have not been in self defense.
As the State's first witness, the victim, John Prunty, was called. He testified that he arrived at Wade's Inn, a Peoria tavern, between 4:30 and 5 on the afternoon of January 20, 1978. While Prunty was talking to some friends, the defendant came up behind him, touched his shoulder, and asked Prunty if he had something against him (the defendant). Prunty told the defendant, whom he had seen once before, "No, I don't even know you." The defendant said, "Let's keep it like that," and walked away. Sometime later, as Prunty and some friends were seated at a table, Prunty noticed the defendant kept staring at him. Prunty, calling the defendant over, asked what he had done to the defendant and offered to buy the defendant a drink. As the defendant and Prunty got up from the table, Prunty heard a sound like that of an air gun and felt a pain in his stomach. Prunty fell on the defendant and hung on him. He heard another shot and felt a sting in his side. Prunty and the defendant then "rassled," Prunty being either pushed or falling to the floor where he was shot again in the chest. He saw the defendant standing over him with a gun which the defendant pointed at him and clicked two or three times. On cross-examination Prunty said he had first seen the defendant at Wade's about one month prior to the instant occurrence and admitted that in a prior statement to a police officer he may have omitted referring to having been shot before the struggle with the defendant began.
Robert Hightower, the State's second witness, had been seated at the table with John Prunty. He observed Prunty grab the defendant by his coat and slam him against the floor. When they stood up again the defendant drew a pistol and fired at Prunty. After Prunty again fell to the floor, the defendant offered the gun to anyone in the bar, but no one would take it. The defendant then walked out.
Frank Wade, the owner of Wade's Inn, was also present. He heard a door slam and saw that Prunty had the defendant by the collar and they were "rassling". The defendant then shot Prunty four times and Prunty fell to the floor. The defendant started out the door, but returning, he pointed the gun at Prunty's head. Somebody hollered, "Don't shoot that boy no more." The defendant then "revolved" the pistol. Afterward, the defendant tried to give the gun away to Wade and left.
Michael Smith testified that he saw the defendant at Spanky's Tavern in Peoria at 7 or 7:30 p.m. on January 20, 1978. The defendant informed Smith that he (defendant) was a "wanted man," having just shot a man at Wade's. When defendant left, he left in a cab.
Craig Ganda, a Peoria police officer, arrived at Wade's Inn shortly after the shooting. Examining Prunty, he found four bullet wounds, two on Prunty's left side, one at the center of his back, and one on the lower part of his shoulder.
The defendant, testifying in his own behalf, stated he did not know John Prunty personally prior to January 20, 1978, but had seen him before. He had seen Prunty one evening prior to Christmas in a private club wherein the defendant was talking with Minnie Robertson, a woman friend of Prunty's, when Prunty walked up and grabbed her by the arm to lead her away. The defendant asked Prunty to show the lady some respect, and a brief argument ensued between Prunty and the defendant.
The defendant next encountered Prunty at the same club some two weeks later. The defendant was seated at the bar when Prunty bumped into him, nearly knocking him from the bar stool. The defendant asked what Prunty's problem was, but Prunty just grinned and walked away, saying: "I'm going to get a chance to help you, guy." A subsequent encounter with Prunty also occurred at this club when the defendant was asked by Prunty whether he (defendant) wanted a drink. When the defendant replied negatively, Prunty said he wasn't going to buy him one anyway.
On January 20, 1978, the defendant, after having been at Wade's for a while, was sitting at a table when he heard a door slam behind him. He turned around and Prunty was standing behind him with his hands in his pocket and staring down the defendant's back. Prunty then walked away. The defendant then got up, walked over to Prunty, tapped him on the shoulder and asked Prunty why he was picking on the defendant. Prunty just grinned and walked away. The defendant sat down, but later in the evening, after the defendant had gone home, exchanged cars with his wife, and returned, the defendant was seated at the bar talking with Minnie Robertson and Willie Barber when he noticed Prunty behind him again. Prunty moved away.
A short time later as the defendant walked by the table at which Prunty was seated, Prunty assaulted the defendant, jabbing him in the stomach and picking him up by the lapels of his coat, slamming him against the door. They wrestled and Prunty kept ramming the defendant's head against the door. Prunty then dropped his hand as if to go for his jacket and the defendant went for his gun. The defendant testified that he tried to shoot Prunty in the lower part of his body so as not to seriously wound him. The defendant only intentionally fired the gun once, but it went off three other times during the struggle. The defendant denied intending to shoot Prunty prior to being assaulted and said he was carrying the gun because he had intended to pawn it.
After trying to give the gun away, the defendant left the bar, drove off, and threw the gun away. He then went to Spanky's bar where he left his car, taking a cab to his sister-in-law's. The defendant said he had only wanted to hurt Prunty enough to get him off and that he feared for his life because he had known Prunty to carry a gun and had heard that Prunty had previously been involved in some shootings.
1 Unless the evidence is so palpably contrary to the verdict or so unsatisfactory as to raise a reasonable doubt of a defendant's guilt, a reviewing court will not set aside a jury's verdict, for any inconsistencies or discrepancies in the testimony of the witnesses, any possible bias or interest affecting the credibility of the witnesses, and the weight to be attributed to the testimony of the witnesses are matters peculiarly within the province of the jury. This is so because the jury is in a better position to assess each witness' ability to remember and ...