(301 III. 225)

(133 N.E.)

PEOPLE v. SAVANT. (No. 14099.) (Supreme Court of Illinois. Dec. 22, 1921. Rehearing Denied Feb. 9, 1922.)

1. Homicide 338(3) Admission of decedent's declarations as to conceded fact harmless.

In view of the conceded fact that defendant shot deceased, any error in admission of decedent's statements to that effect, made immediately after the shooting, was harmless.

2. Homicide 203 (7)-Proper predicate laid for admission of dying declaration.

Evidence held to show that deceased, when making the statement admitted as a dying declaration, was under firm belief and conviction that his death was imminent, and that he had no hope of escaping the impending danger. 3. Homicide 250-Conclusion of deliberate murder warranted.

ty of the murder of Fritz Heick, and sentenced to be hanged. He has sued out this writ of error to review the judgment.

It is urged that the court erred in admitting testimony for the prosecution, in giving instructions for the people, in failing to give an instruction defining the crime of manslaughter, in allowing the written dying declaration of deceased to be taken by the jury when they retired to consider their verdict, and that the jury was guilty of misconduct prejudicial to defendant.

It is not denied that defendant shot and killed Fritz Heick on Sunday morning, January 2, 1921, but it was claimed by defendant on the trial of the case that the killing was done in self-defense. Defendant's brother, Albert Savant, is a merchant residing and doing business in the village of Valier, in Franklin county. other merchandise. he did business in, on the south.

He sold groceries and He owned the building Evidence held to warrant the jury in conwhich faced the street The first floor was divided cluding that the shooting was wholly unproThe east voked and unnecessary, and deliberate murder. north and south into two rooms. 4. Criminal law 822(1)—Enough that in-room was occupied as a pool room and the structions as a whole fairly stated the law. west room as a store. The west half of the It is enough that the instructions, consid-second story of the building was divided into ered together, fairly state the law applicable five or six rooms, and was occupied by Alto the theory of both prosecution and defense, though there are slight inaccuracies in some of them, and some do not state all the law on the question.

bert and his family as their residence. The kitchen was the north room, next south of it was the sitting room, and then three bedrooms. The east part of the second floor was 5. Criminal law 824 (3)-Unless requested, a miner's hall. There was a passageway or no duty to give instruction defining man-hall between the living rooms and the minslaughter.

There is no duty to give an instruction defining manslaughter, none being asked.

6. Criminal law 858 (3)-Permitting jury to take out written dying declaration within court's discretion.

er's hall, with doors opening from it into the living rooms. The stairway leading to the living rooms was inside the rear of the building, and led up into the kitchen. There was a building used by Albert as a warehouse about 30 feet northwesterly from the store building. It was about 18 feet square, and faced south. The killing occurred in that building, no one being present at the time except defendant and deceased. Defendant 7. Criminal law 1174(6)-Permitting writ-had been for some time previous living with ten dying declaration to be taken to jury room harmless, in view of oral testimony.

Permitting a written dying declaration to be taken out by the jury on retiring was not

in the court's sound discretion.

Permitting dying declaration to be taken to the jury room was not prejudicial, there being oral testimony to practically the same words of the dying declaration.

his brother, Albert. He was a miner, but

at times worked for his brother in the store and pool room. Deceased was a young man between 20 and 21 years old, and at and before the time of the homicide was working for Albert, delivering groceries and meat and Error to Circuit Court, Franklin County; otherwise assisting in the business. DefendCharles H. Miller, Judge.

ant had a wife and two children living in Cincinnati. He was living separate and

John Savant was convicted of murder, and apart from his wife, because, as he claimed, brings error. Affirmed.

George B. White, of Marion, and G. A. Hickman and Carl Choisser, both of Benton, for plaintiff in error.

Edward J. Brundage, Atty. Gen., Roy C. Martin, State's Atty., of Chicago, and George C. Dixon, of Dixon, for the People.

of her misconduct with other men. He went to visit his wife and children the latter part of December, 1920. They became reconciled, and he brought her, with their two children, and a child of his wife by a former marriage to his brother's house, in Valier. The children were, respectively, 9, 6 and 3 years old. They left Cincinnati early in the morning of FARMER, J. John Savant, plaintiff in December 31, and arrived at Albert's house error (hereafter called defendant), was con- about 9 o'clock that night. Albert's family victed in the circuit court of Franklin coun-had never met defendant's wife before. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

When they arrived at Albert's house there the day on Saturday he was trying to rent were present besides Albert his wife, son, a house from a man who lived in Chrisand daughter, the deceased, Savant's maid, topher; that the deceased said he hoped he and Mr. and Mrs. Le Pere, friends of the would succeed in getting the house; that he Savants. was the delivery boy for Albert to deliver goods, and the house was on his route, and he would drop in every day. Defendant testified he told deceased he did not want him to cause any trouble-that he had had enough trouble with his wife-and deceased laughed and went up stairs. He further testified that when he went with deceased from the pool hall up stairs Saturday night he read the newspaper a little while before going to his bedroom; that when he went to his bedroom his children were in bed, and his wife had been, and some of her clothes were there, but she was not; that he went down stairs and back to the toilet, but could not find her; that he then remembered his sister-in-law had spoken about a quilt deceased ought to have, and he took it and went to the shack to give it to deceased, and also to see if his wife was there with him; that he heard voices, and asked deceased if he wanted a quilt; that deceased replied he did not; that defendant then went back to his bedroom but his wife was still not there; that he then went back to the shack to listen, but, hearing no voices, came back to his bedroom and his wife was there; that she said she had been to the toilet. He testified he went to the warehouse where he knew deceased was on Sunday morning, to talk to him about his relations with defendant's wife; that he had told deceased before that he wanted him to stop joking about his wife; that when he went to the warehouse deceased was filling a bucket with

After the parties were all introduced supper was prepared for defendant and his family. When defendant's family arrived, deceased, Le Pere, Freda Merchel, the maid, and Martha and Joe Savant, children of Albert, were playing cards on the kitchen table. When supper for the defendant's family was ready they went into the sitting room and continued playing cards. Defend ant and his wife did not at any time play cards and some time after eating supper retired to the south bedroom, which had previously been occupied by deceased and Albert's son, Joe. It had been arranged that deceased and Joe should sleep in a building called "the shack," which was 75 feet or more from the store building, and had been occupied before that time by defendant. The card party lasted till the New Year came in, and then deceased and Joe went to the shack and went to bed. The next day, which was Saturday, January 1, defendant and his family spent at the home of his brother Alfred, who also lived in the village of Valier, and returned to Albert's house some time that evening. Defendant and deceased were in the pool hall until about 11:30 that night. Deceased was not ready to go to the shack when Joe, who was 12 years old, wanted to go to bed, and the boy went up stairs and slept on a pallet. Defendant testified he and deceased left the pool room together about 11:30 and went up stairs, where deceased got the key to the shack so that he could get in and go to bed. He left the house immedi-feed, and defendant told him he wanted to ately after getting the key.

The next morning Albert and defendant were to go to the farm of one Dees to butcher a beef. After a late breakfast deceased was directed by Albert to hitch up the team and get some feed from the warehouse. While deceased was hitching up the team defendant went to him and asked for the key to the shack, so that he could get a shaving set he had left there, as he wanted to shave. Deceased gave him the key, and he procured the shaving set and went into his brother's house and shaved. After doing that he went down stairs and out to the warehouse, where deceased was getting some feed, and there shot him, mortally wounding him, so that he died the same day. The gun used was a Colt automatic 38. After the shooting defendant went into his brother's house and to the bedroom occupied by him and his wife, where he remained until taken into custody by the officers.

Defendant testified on the trial, among other things, that he saw his wife "flirting with this boy" within 20 or 30 minutes after they arrived at his brother's house the evening of December 31; that some time during

talk to him; that deceased asked what he wanted, and he replied he had had enough trouble with his wife, and wanted deceased to leave her alone; that deceased laughed at him, and when defendant told him he meant it, deceased grabbed a hatchet and came toward him; that defendant told him to stop, and deceased said he would get him; that deceased was very angry, and would not stop, but kept advancing toward defendant; that then defendant drew his gun and be gan shooting; that he did not know how many shots he fired; that after the shooting he went up stairs to his room in his brother's house.

The only corroboration of defendant's testimony of misconduct between his wife and deceased was the testimony of Mrs. Albert Savant that, while defendant's wife was sitting in a rocking chair in the sitting room, and deceased was playing cards in the same room with other parties the evening of December 31, she saw them nod at each other. The same witness testified she saw defendant leave the house just before the shooting, and heard three or four shots, and immediately after the shooting she heard deceased

(133 N.E.)

crying, and at once went to the warehouse; [described how the shooting occurred in subthat deceased was lying on a sack of feed; that witness' husband was there also, and one or two others; that deceased said, "John shot me," and the witness asked him what he shot him for; that deceased replied, "John said, 'You fooled me long enough'"; that witness went back up stairs to defendant's bedroom; that his wife was lying on the bed, crying; that witness said, "John, what for you done that?" and he said, “They kidded me long enough."

given on behalf of the people. Probably there are some slight inaccuracies in some of them, and some of them, perhaps, did not state all of the law on the question, but we are clear that there was not such error in them as to have prejudiced the rights of defendant or to require detailed discussion in this opinion. Twenty instructions were given on behalf of the people and 29 on behalf of the defendant. Considered together, they fairly state the law applicable to the theory of both the prosecution and defense, and defendant was not prejudiced by the giving of instructions.

[5] No instruction was asked by either party, or given by the court defining manslaughter, and it is contended this was error. The same contention was made in People v. Lucas, 244 Ill. 603, 91 N. E. 659, which was a murder case. This court said:

"No such instructions having been asked by plaintiff in error, the court had a right to assume that plaintiff in error preferred to submit the case to the jury in such way that the jury would be compelled to find the defendants guilty of murder or not guilty. It was the right of plaintiff in error to submit that question to the jury and require the jury to pass on the question of his guilt or innocence of the crime of murder, and it was not the duty of the court to submit issues and questions to the jury which the parties, by their action, said they did not desire passed upon."

The same in principle is Dunn v. People, 109 Ill. 635.

vits of all the jurors and persons not members of the jury. The court properly refused a new trial on that ground.

[6, 7] The court permitted the jury to take with them to the jury room, when they retired to consider their verdict, the written statement offered in evidence as the dying declaration of the deceased, and this, it is claimed, was error sufficient to reverse the judgment. A written dying declaration admitted in evidence in Dunn v. People, 172 Ill. 582, 50 N. E. 137, was allowed to be taken by the jury when they retired to consider their verdict. Parts of the written statement were held incompetent by the trial court, who placed brackets around the incompetent parts and orally instructed the jury not to consider those parts of the dying declaration. Permitting the statement to be taken by the jury was held to be erroneous under the circumstances presented in that case, but there

were also other serious errors on the trial pointed out in the opinion of this court. In Cooke v. People, 231 Ill. 9, 82 N. E. 863, a bill of particulars filed by the people was read to the jury by the state's attorney, and permitted to be taken by them to their room when they retired to consider their verdict. This was held not to be reversible error. The court referred to Dunn v. People, supra, and said whether the dying declaration should be permitted to be taken by the jury rested largely in the sound discretion of the court, and said a judgment would not be reversed for permitting the jury to take with them to their room a written instrument admitted in evidence unless it clearly appeared such action was prejudicial, and ought not to have been permitted. The written declaration of deceased admitted in evidence in this case was competent in its entirety. It was very short, consisting of five lines as printed in the abstract. Oral testimony of witnesses before the jury as to the dying declaration was the same as the written statement. We are of opinion it was not within the sound discretion of the court to permit the written dying declaration to be taken by the jury to their room, and that it should not have been permitted; but, inasmuch as witnesses had testified orally to practically the same words of the dying declaration, it seems clear that defendant was not prejudiced by it, and the judgment should not be reversed on account of that action of the court.

It is further contended the jury were guilty of such misconduct as that the judgment should be reversed. In support of the motion for a new trial defendant filed several affidavits, one by Ben Westbrook that he was the owner of the restaurant where the jurors took their meals during the trial, and while at their meals some of the time they were attended by only one officer; that they mingled with other persons in the restaurant, and on some occasions when the officer had finished his meal he would go out and wait on the sidewalk for the jurors to finish their meals; that during the trial witnesses for the prose cution and the defense ate at his restaurant, and at different times he heard witnesses talking about the case. He made another affidavit that he never heard any one talk to any juror about the case in his restaurant, and never heard any talk about it in the presence of the jurors; that on two or three occasions the officer in charge, after he had eaten, stepped out on the sidewalk in front of the restaurant to wait for the jurors to finish their meals, but he was in view of the jury, and not more than 25 feet from the farthest one. Other affidavits of misconduct were filed, but were not of sufficient im- The clerk of this court is directed to enter portance to require detailed discussion. The judgment and an order fixing the period bemisconduct alleged was fully explained and tween 9 o'clock in the forenoon and 4 o'clock shown to be without merit by counter affida- | in the afternoon of February 24, 1922, as the

On account of the consequences to defendant we have given the record the best consideration we are capable of, and are firmly convinced that the jury were fully warranted in finding that the killing was murder, unattended by any mitigating circumstances, and the judgment is affirmed.

(133 N.E.)

time when the original sentence of death en- 16. Health
tered in the circuit court of Franklin county
shall be executed. A certified copy of such
order shall be furnished by the clerk of this
court to the sheriff of Franklin county.
Judgment affirmed.

2. Counties 190(1)-Can levy tax to main-county taxes had sustained objections to the

DUNCAN, J. The county court of Macon county overruled the objections of appellant, the Illinois Central Railroad Company, to the county tuberculosis sanitarium tax, the taxes for the sanitary district of Decatur, and the school taxes levied by four school districts in said county, school districts Nos. 19, 42, 63, and 96, and entered judgment

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes