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(315 Ill. 106)

have acted as a man of ordinary judgment and PEOPLE v. DUNCAN. (No. 16221.) courage, but it is sufficient if the facts as they

appeared to the defendant at the time and un(Supreme Court of Illinois. Dec. 16, 1924.) der the conditions were such as to indicate to

him, as a reasonable person, an intent to take 1. Criminal law 1 165(l')—Verdict on con

his life or do him great bodily injury. flicting evidence sustained only if jury has been properly instructed and no substantial 9. Homicide en 300(6, 7)—Abstract instruction error has occurred.

tending to mislead dwelling on single feature Verdict of guilty on conflicting evidence will held erroneous. not be sustained unless jury has been properly In homicide prosecution in which defendant instructed and no substantial error has oc claimed to have acted in self-defense, instruccurred on the trial.

tion that provocation by words would not re2. Criminal law Ow8081/2-Instruction as to not applicable to the case, tending to lead jury

duce killing to manslaughter held erroneous as self-defense in language of statute held er

to disregard effect of threats on defendant's roneous. In homicide prosecution, instruction in the feature of case.

mind and improperly calling attention to single language of Cr. Code, $ 148, which, with exception of opening clause, “justifiable homicide 10. Criminal law Om | 120(3)-Exclusion of is the killing of a human being in necessary question held not error in absence of showing self-defense,” had no application to case, held as to answer. erroneous, since it could only confuse jury,

Refusal to permit witness to answer ques. 3. Homicide Ca 300(12)- Instruction held er

tion held not error, in absence of showing as

to what answer would have been. roneous in that it deprived defendant of defense of self-defense.

Farmer, J., dissenting. In homicide prosecution in which defendant claimed to have acted in self-defense, instruc Error to Circuit Court, Peoria County; T. tion as to malice aforethought held erroneous N. Green, Judge. as meaning that if defendant, when he shot

Clyde Duncan was convicted of murder, deceased, understood the nature of the act and that it would probably kill the deceased, malice and he brings error. Reversed and reaforethought was established and the killing manded. was murder.

C. E. McUemar, of Peoria, and W. S. Jew. 4. Homicide 119-One may use deadly ell, of Lewistown, for plaintiff in error. weapon with intent to kill in self-defense. Edward J. Brundage, Atty. Gen., Ernest J.

In self-defense, a man may intentionally Galbraith, State's Atty., of Peoria, Edward and deliberately use a deadly weapon intending O. Fitch, Asst. Atty. Gen., and Francis C. to kill his opponent without being guilty of Vonachen, of Peoria, for the People. murder or manslaughter or any other crime, because his act is justified.

DUNN, J. Clyde Duncan was convicted 5. Criminal law Ow778(5)-Homicide Om 300 of murder and prosecutes a writ of error to (3)-Instruction on self-defense held errone

reverse the judgment. ous as to burden of proof and apparent necessity.

Duncan kept a saloon at the corner of In homicide prosecution, instruction held Washington and Bridge streets, in the city erroneous in that it placed burden of proof on of Peoria, in which the homicide occurred on defendant on issue of self-defense, and required Friday evening, September 28, 1923, about danger to have been such that a reasonable 9:30 o'clock. About that time the deceased, person under the same circumstances would John Grant Powell, in company with two ashave believed it necessary to kill deceased. sociates, entered the saloon and immediately 6. Homicide em 151(3), 244(1)--Burden of

began cursing and abusing Duncan, who was proof and measure of proof same where de- standing behind the bar with his barkeepfense is self-defense as where other defenses er, William McKinney. Duncan answered in are involved.

kind, and volleys of profanity and obscenity The burden of proof is on the prosecution. were exchanged between the two partici. and the measure of proof is the same where pants. It appears that some of the frequent. the defense is self-defense as where other de- ers of the place who were witnesses at the fenses are involved.

trial regarded the exchange of ribaldry as 7. Homicide em 244 (3)-Defendant cannot be jocular in its character, but if there was

convicted if evidence as to self-defense leaves anything jocose about it the quality soon reasonable doubt.

changed. Powell wanted to buy a drink for Defendant cannot be convicted if the evi- the house, but Duncan refused to sell him a dence as to self-defense leaves a reasonable drink and ordered him out of the place, telldoubt as to his guilt.

ing him to go out and stay out. Powell told 8. Homicide Om 116(4)-Rule as to self-de. Duncan if he would come out from behind fense stated.

the bar he would whip him in his own saloon. Actual danger is not necessary to justify Powell's two companions took hold of him killing in self-defense, and defendant need not and endeavored to induce him to leave. They

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(145 N.E.) got him as far as the door, when he broke, and they were arrested there by the police away from them and went back to the bar. upon their arrival within five minutes. It is In the meantime Duncan, while these events claimed by the prosecution that Duncan were occurring, had turned around and tak- placed the knife beside the body. There is en from a drawer by the cash register, im- no evidence of it. mediately behind the bar, a revolver, which The case was tried by the state on the thehe held in his hand hanging at his side. ory that Powell was not shot by Duncan in When Powell broke loose from his compan- self-defense, but that because Powell had ions at the door, he came back in front of threatened to whip Duncan in his own saloon the bar opposite Duncan, and it is the claim Duncan stood with the revolver in his hand of the prosecution that Duncan without any waiting several minutes for an opportunity further provocation raised the revolver and to shoot Powell, who was unarmed; that he fired point blank at Powell's head, sending got the revolver for that purpose; and that the bullet through his brain. Powell fell he killed Powell with premeditated malice. back on the floor and died in a few minutes. It is claimed by the prosecution that when It is the claim of the defense that when Powell came to the saloon he was apparently Powell came to the bar he commenced pound- in a jovial mood, and that the exchange of ing on it with his right hand, cursing Dun- rough language was merely playful banter can and challenging him to fight; that he up to the time when Powell stated that if had his left hand in his pocket and drew it Duncan would come out from behind the bar out and brought it up over the bar. The Powell would whip him in his own saloon defendant claims that he saw a flash coming and the defendant ordered Powell to get out over the bar, and believing that Powell was of the place and stay out. There was also about to shoot him, he shot Powell in self- evidence of Powell, together with his two defense.

companions, being in other places of like reThere were a number of persons in the sort in that same evening before coming to saloon at the time-nine or ten--who testi. Duncan's place, and threatening that he was fied, giving their respective versions of the going to Duncan's place, that he was going occurrence. There is a great discrepancy in to get Duncan, and if he could not whip their testimony, hardly to be accounted for him he was going to cut his guts out. A witby honest differences of recollection. It is ness testified that at one place he exhibited certain that Powell entered the saloon and the knife which was afterward found beside conducted himself in the disorderly manner his body on the floor of Duncan's saloon, or described; that he threatened to whip Dun- one like it. can, and after being induced to go as far as [1] There was serious conflict in the testithe door, returned to the bar opposite Dun- mony. While there were a number of percan. The question involved in the greatest sons in the saloon, their testimony as to the uncertainty in the evidence is the conduct of occurrences of the few minutes after Powell the two men at the precise time of the shoot- came in before his death differs so much in ing and for a moment before. Of all the details as to be difficult, if not impossible, of nine or ten witnesses in the room, none seem, reconcilement. In such a condition it is esaccording to the testimony, to have seen the sential, in order to sustain the verdict, that actual shooting or what occurred between the jury should have been properly instructthe two men at the precise time or an in- ed and that no substantial error should have stant before. If Powell's actions at that occurred on the trial. The defense was selftime were such as to justify Duncan in be- defense. The questions of law in the case lieving that Powell was about to attack him were not intricate or complex and did not with a knife or revolver, he was justified in require a great volume of instructions as to shooting Powell. The police were called di- the law, but 22 instructions on behalf of the rectly after the occurrence and arrived at the people and 38 on behalf of the defendant saloon within five minutes. Powell was ly- were given, all occupying 28 printed pages ing on his back on the floor in front of the of the abstract. bar, with his feet within a foot or two of the [2] The fifth, ninth, and eleventh instrucbar, and upon the floor beside him, within a tions are complained of. The fifth instrucfew inches of his left hand, was lying antion is section 148 of the Criminal Code open clasp-knife. Nobody testified to seeing (Smith-Hurd Rev. St. 1923, c. 38, $ 366), and him have this knife in his hand except Mc- except the opening clause, "justifiable homKinney, who testified that when Powell came icide is the killing of human being in necback to the bar he had his left hand down essary self-defense,” has no application to at his side, and that while he was pounding the case and should not have been given. It on the bar with his right hand he brought could only confuse the jury and distract his left hand above the bar with the knife their minds to apply it to the case. People in it and struck at Duncan, missing his neck v. Davis, 300 Ill. 226, 133 N. E. 320. three or four inches. Everybody went out of The first instruction defined "murder" as the room immediately after the shooting, the unlawful killing of a human being in the leu ving Duncan and McKinney there alone, peace of the people, with malice afore

thought, either expressed or implied. The, and it would be monstrous to say, that if they ninth instruction was as follows:

act from real and honest conviction, induced by “The jury are instructed that the deliberate sible criminally for a mistake in the extent of

reasonable evidence, they shall be beld responintention, called malice aforethought, need be the actual danger, where other reasonable and only such deliberation and thought as enables a judicious men would have been alike mistaken." person to appreciate and understand, at the time the act was committed, the nature of his This case has been uniformly approved act and its probable results.”

and followed in many cases. The instruction [3, 4] This instruction practically eliminat- is in error also in stating that it must aped the plaintiff in error's defense. After the pear that the danger to the defendant was jury had been told that murder is an unlaw- such that a reasonable person, under the ful killing with maiice aforethought, this same circumstances, would have been inducinstruction informed them that malice afore- ed to believe, etc. The jury are not to de thought need be only such deliberation and termine what a reasonable man would have thought as 'enable a person to appreciate been induced to believe, but, what did the and understand, at the time the act was com- defendant at the time and under the cir. mitted, the nature of the act and its prob- cumstances, acting as a reasonable man, beable results; that is, if the plaintiff in error, lieve? What any reasonable man may do when he shot, understood the nature of the under given circumstances is not always posact and that it would probably kill Powell, sible to determine. Man's reason does not malice aforethought was established and the always operate to produce the same result killing was murder. In self-defense a man under the same circumstances. The question may intentionally and deliberately use a in cases of this character concerns the pardeadly weapon, intending to kill his oppo- ticular man, and the circumstances must be nent, without being guilty of murder or man- viewed from the standpoint of the defendant slaughter or any other crime, because his act alone, particularly under circumstances of is justified. People v. Davis, supra ; People great excitement. In order to avail himsell v. Jarvis, 306 Ill. 611, 138 N. E. 102; People v. of the right of self-defense, it is not neces. Penman, 271 Ill. 82, 110 N. E. 894.

sary that the defendant should have acted as [5-8] Instruction No. 11 attempts to inform a man of ordinary judgment and courage or the jury what will constitute a justification as an ordinarily courageous man. People v. of the killing under the doctrine of self- McGinnis, 234 Ill. 68, 84 N. E. 687, 123 Am. defense in these words:

St. Rep. 73. It is sufficient if the circum"It must appear from the evidence that at stances were sufficient to excite the fears of the time of said killing the defendant was in a reasonable person and the defendant really such apparent danger that a reasonable person acted under the influence of those fears. under the same circumstances would have been The twelfth instruction was: induced to believe that it was necessary or ap

“No provocation by words only, however opparently necessary to kill John Grant Powell in probrious, will mitigate an intentional killing order to save his own life or to prevent his re

so as to reduce the killing to manslaughter." ceiving great bodily harm." The burden of proof and the measure of

[9] It was an abstract proposition of law proof are the same whether the defense is and had no application to a plea of self-deself-defense or any other, and in any case fense. Its tendency was to lead the jury to the burden is on the prosecution to prove the disregard the effect of Powell's threats to guilt of the defendant and the defendant is whip Duncan in leading the latter to believe not required to prove anything. It is suffi- that Powell was about to assault him and cient if the evidence as to self-defense leaves that his life was in danger. It is inconsist. a reasonable doubt as to the defendant's ent with the language of the court in disguilt. It is erroneous to instruct the jury cussing the facts in Silgar v. People, 107 III.

563, where it is said: that the burden of showing any fact is on the defendant. Actual danger is not neces "For aught that appears, the language of the sary to justify self-defense, but the question deceased may have been of the most offensive is whether the facts as they appeared to the and provoking character, or it may, as testified defendant at the time and under the condi- to by the accused, have consisted of threats

against the prisoner's life, which, in view of tions there present were such as to indicate the existing relations between the parties, mag to him, as a reasonable person, an intent to have well aroused in the mind of the accused take his life or do him great bodily injury. the most serious apprehensions of danger; and This was the doctrine announced in Camp- if the taking of the life of the deceased was bell v. People, 16 111. 17, 61 Am. Dec. 49, in induced by either of these causes, and was not which it was said:

done in wantonness, or from a mere spirit of

revenge, it is clear the killing would not "Men, when threatened with danger, murder." obliged to judge from appearances, and determine by the actual state of things, from the cir

The instruction calls attention improperly cumstances surrounding them, at least as much to a single feature of the case as being in. as if placed in other and less exciting positious; | sufficient to establish a defense or reduce

are

(145 N.E.) the grade of the crime. It is equivalent to sel for the plaintiff in error asked him an instruction that mere threats or words to state what Powell did that constituted a cannot reduce an intentional killing to man- disturbance, but an objection made to the slaughter, which, as a proposition of law, question was sustained. Counsel for the may be true enough. The object of instruct- plaintiff in error say in their brief that, asing the jury, however, is not to educate the suming that the deceased struck a patron jurors in abstract legal principles, but to in- in the defendant's place of business and form them of the pertinent rules of law in knocked him down for the simple reason their application to the particular case. The that the patron refused to buy the deceased contention of the defendant was not that a drink at deceased's request, this would there was a provocation by words, only, but show to the jury that the defendant was that threatening words were accompanied by clearly within his rights in ordering the deaction indicating a hostile intent dangerous ceased to leave his place; that the defense to the defendant's life. The words should was allowed to show such facts at a previnot be considered by themselves, but must be ous trial and should have been allowed to do considered in connection with the actions to so at this trial, because this conduct had an which they gave character. The instruction important bearing on what happened the considers the words, alone. It entirely next Friday night, showing that Powell was ignores the plea of self-defense. It assumes a violent and dangerous man, and, taken in that an intentional killing must be murder or connection with the testimony which showmanslaughter, contrary to the principle that ed him to have been a blacksmith and horsea man may intentionally and deliberately shoer and a man of great physical strength, kill his opponent in self-defense and not be it would have a tendency to lead the deguilty of either murder or manslaughter. No fendant to believe that the deceased was a attempt was made to apply the abstract prop- man who would wantonly and recklessly atosition of law to the facts in the case, and tack a person who failed to comply with his the instruction is capable of being under-wishes. The record does not show that these stood by the jury as assuming that the de- things occurred on a previous trial, and even fendant did not act in self-defense and that if they did, it cannot be assumed that the provocation by words, only, was proved, and court had knowledge of all that occurred on that therefore the intentional killing of Pow- such trial, and in the absence of a statement ell was murder. It was error to give an in- of what it was expected to prove by the anstruction capable of being so understood. swer to the question, the court committed no People v. Jacobs, 243 Ill. 580, 90 N. E. 1092; error in sustaining the objection to it. People v. Bissett, 246 Ill, 516, 92 N. E. 949. Complaint is made of the attitude of the

(10) On the examination of the plaintiff in court toward the defense during the trial and error, he testified that Powell was in his of the conduct of the state's attorney; but place on Sunday night or Monday night be- since the judgment must be reversed for the fore the Friday evening when he was killed ; error in the instructions, which failed to that he created a disturbance there; and give to the plaintiff in error the benefit of that the plaintiff in error ordered him out his plea of self-defense, we do not regard it of the place and told him to get out and stay as necessary to comment on these matters. out, that he did not allow any of that kind The judgment will be reversed, and the of stuff in his place. As Powell went out, cause remanded. the plaintiff in error testified, he said, "I Reversed and remanded. will get out this time, but the next time I come in here I am going to get you." Coun FARMER, J., dissenting.

(315 III. 115)

formation, and finding the defendant WalPEOPLE v. KROLL. (No. 16242.) ter Kroll not guilty. Motions for a new (Supreme Court of Illinois. Dec. 16, 1924.) overruled, plaintiff in error was sentenced

trial and in arrest of judgment having been 1. Jury Omw 131(6)-Refusal to permit question to be imprisoned in the county jail for a

to juror as to membership in Ku Klux Klan term of 90 days, to pay a fine of $200, and held not abuse of discretion.

ordered committed to the county jail of Where record did not show either that any Lake county until the fine and costs were one interested in prosecution or defense was fully paid or until she was otherwise dismember of Ku Klux Klan, or that such or- charged pursuant to law. Upon review by ganization was interested, or that its members writ of error the Appellate Court for the were antagonistic to or prejudiced against de- Second district affirmed the judgment of the fendant, refusal to permit question to juror on toir dire as to whether he was member of county court of Lake county and the record Klan, or ever belonged to the Invisible Em- is now before us for review upon writ of pire, was not an abuse of discretion.

error. 2. Criminal law Om742(1)-Weight given tes

[1] During the examination of the jury timony of witness buying liquor held for jury. upon their voir dire one of the prospective

Weight to be given testimony of purchaser jurors was asked the questions "Are you a of intoxicating liquor is question solely for member of the Ku Klux Klan ?” and “Have jury.

you ever belonged to the Invisible Empire 3. Criminal law em 1122(1)-Record did not or ever heard of it?" Objections were sus

disclose that instructions complained of were tained to these questions, and the ruling of marked given.

the court in that respect is assigned as er. Record held not to disclose that instructions ror.

In Snyder v. State, 160 Ark. 93, 254 complained of were marked given by court or S. W. 381, error was assigned on the refusal in fact read to jury.

of the court to allow the defendant to ask 4. Criminal law Om829(1)-Refusal of instruc- each of the jurors on their voir dire esami

nation whether he was a member of the Ku tions covered by ones given not error.

Klux Klan. Defendant claimed that the It is not error to refuse instructions stating correct propositions of law which were fully prosecuting attorney and other court officers covered by given instructions.

were members of the Klan. The Supreme

Court of Arkansas upheld the ruling of the 5. Criminal law Om711-Limiting argument to 30 minutes held without error,

trial court, and held that to make the inIn prosecution for unlawfully selling in- quiry other than impertinent and a probe toxicating liquor, where there was very little into the personal affairs of the jurors it material evidence and issues were not compli- should be made to appear that the organizacated, limiting argument to 30 minutes on each tion, or the members thereof, were antagoside, instead of three-quarters of an hour, as nistic to the accused or some organization to requested, held without error.

which he belonged. In this state the rule is

laid down in Donovan V. People, 139 Ill. Error to Appellate Court, Second District, 412, 28 N. E. 964, and cited with approval in on Error to Lake County Court; Perry L. People v. Robinson, 299 Ill. 617, 132 N. E. Person, Judge.

803, and People v. Redola, 300 Ill. 392, 133 Agnes Kroll was convicted of unlawfully N. E. 292, that the defendant, through his selling intoxicating liquor. Judgment of con- counsel, has a right to ask pertinent and viction was affirmed by the Appellate Court, proper questions of the persons called as and defendant brings error. Affirmed.

jurors, testing their capacity and competenE. V. Orvis, of Waukegan, for plaintiff in of the propriety of exercising the right of

cy, and that for the purpose of advising him Edward J. Brundage, Atty. Gen., Ashbel sable to the selection of a fair and impartial

peremptory challenge, it is often indispenV. Smith, State's Atty., of Waukegan, and jury that the occupation, habits, associaGeorge C. Dixon, of Dixon (Sidney H. Block, tions, and predisposition of the jurors should of Waukegan, of counsel), for the People.

be known so far as they may tend to bias

or pervert their judgment, but that the HEARD, J. The state's attorney of Lake examination of jurors should be confined to county filed in the county court of that coun legitimate inquiry into the particular ty, against plaintiff in error and Walter matter under investigation, and take range Kroll, an information consisting of 10 counts, enough only to put the court and counsel in the first of which counts charged them with possession of such material matters affectunlawfully selling intoxicating liquor. Pleas ing the jurors as will enable them to act inof not guilty having been entered, a trial by telligently in the selection of the jury, and jury was had, resulting in a verdict find that the nature and extent of the inquiry ing plaintiff in error guilty in manner and are ordinarily left to the sound judicial disform as charged in count No. 1 of the in- 'cretion of the court. In the present case

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error.

a

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