{
  "id": 1583484,
  "name": "People of the State of Illinois, Plaintiff-Appellee, v. Elder Mack, Defendant-Appellant",
  "name_abbreviation": "People v. Mack",
  "decision_date": "1970-02-26",
  "docket_number": "Gen. No. 69-137",
  "first_page": "149",
  "last_page": "159",
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    {
      "type": "official",
      "cite": "120 Ill. App. 2d 149"
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    "id": 8837,
    "name": "Illinois Appellate Court"
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    "name": "Ill."
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      "cite": "145 NE 149",
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      "reporter": "N.E.",
      "opinion_index": 0
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    {
      "cite": "313 Ill 312",
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      "cite": "172 NE 743",
      "category": "reporters:state_regional",
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      "opinion_index": 0
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    {
      "cite": "197 NE 2d 436",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
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    {
      "cite": "30 Ill2d 359",
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  "last_updated": "2023-07-14T20:28:55.675631+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "People of the State of Illinois, Plaintiff-Appellee, v. Elder Mack, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "GOLDENHERSH, J.\nDefendant, Elder Mack, was tried by jury in the Circuit Court of Madison County, convicted of the crime of Murder and sentenced to the Illinois State Penitentiary for not less than 25 nor more than 65 years.\nRobert Lee Lunsford testified that on Wednesday, June 19, 1968, at approximately 10:30 to 11:00 p. m., in response to a call from his daughter, he looked out a window and saw a taxicab standing in front of his home. Two doors of the cab were open. He went out to the cab and saw a man lying a short distance to its rear. He saw no one else in the vicinity of the cab. The police were called.\nDelbert Clemons, a deputy sheriff of Madison County, was dispatched to investigate \u201ca report of a cabdriver laying in the middle of the road,\u201d and he and his \u201criding partner\u201d arrived at the scene at 11:38 p. m. He found a taxicab sitting in the middle of the road, the motor was running and both front doors were open. He found a man lying 55 paces from the vehicle. He could see two wounds in the man\u2019s back and one behind his right ear.\nJohn One,sky, the riding partner, testified to substantially the same matters.\nDemos Nicholas, a deputy sheriff, was present at the hospital when an autopsy was performed on the body of the cabdriver, identified as Swansey Martin. Dr. John Mueller, the pathologist, removed two bullets from the body and gave them to Nicholas. The bullets were placed in an envelope which was initialed by Nicholas and the doctor, and Nicholas delivered them to Chief Deputy Sheriff Frank Schmidt. He stated that a third bullet removed from the body was fragmented. Upon reference to his notes he testified he was in error when he stated he had given the envelope containing the bullets to Schmidt. He stated that on June 22, 1968, he took the bullets and a Rohm revolver to the St. Louis, Missouri Police Department. The revolver was test-fired in his presence and the slugs from the gun were compared to the two in the envelope.\nThe slugs removed from the body of the deceased were returned to the sheriff\u2019s evidence room. On July 12, 1968, Nicholas took them and a different Rohm revolver to the St. Louis Police Department. He had been given the gun by Deputy Sheriff William (Dilly) Connors. He identified an envelope as containing several .22 caliber short bullets taken from the second gun. Further references to a weapon in this opinion are to this second revolver.\nDr. Mueller testified that upon examination of Martin\u2019s body he found three lethal bullet wounds, one to the head and two to the chest wall. The two bullets from the chest cavity were recovered \u201cfairly intact,\u201d the bullet removed from the skull was fragmented. The two bullets were marked by use of a hemostat to make a slash across the base.\nRobert Rizzi, a deputy sheriff, testified that on August 5, 1968, he received an envelope from the St. Louis Police Department, placed it in the evidence room, and when Nicholas returned from vacation he again took charge of the sheriff\u2019s evidence room. This envelope contained a revolver, bullets taken from the revolver, and the two slugs removed from the body.\nDetective Paul Reeder, a firearms examiner for the St. Louis Police Department, testified he received the revolver, bullets and slugs from Nicholas on July 12, 1968, and returned them to Rizzi on August 5, 1968.\nDetective Joseph Brasser, a firearms examiner with the St. Louis Metropolitan Police Department, testified he had been with the police department for 15 years, had been trained for two years by another firearms examiner, was an instructor on firearms for 3 years, and had been a gunner\u2019s mate in the Navy. He had been an examiner for 3% years. He described the method used in making a ballistics test and stated that in his opinion the slugs removed from the body were fired from the revolver.\nOn cross-examination he described the Rohm revolver as being a fairly common weapon of German origin, priced approximately $12 to $22. He stated that in comparing two such guns manufactured in close sequence the number, twist and width of the grooves would be the same but the striations would be different. The Rohm guns are peculiar in that they have 8 \u201clands\u201d and \u201cgrooves\u201d with a right twist.\nWilliam Connors testified that a lady named Betty Mack gave him the gun in question sometime in July and he gave it to Demos Nicholas. Nicholas made a record of the serial number.\nA clerk in a store in Alton produced its record of firearm sales. An entry made by him showed the gun to have been sold to defendant on June 17, 1968. He identified defendant as the purchaser. The record showed the sale of six Rohm guns in a short period of time. The serial numbers indicated manufacture at approximately the same time.\nPatricia Atwood, a driver and dispatcher for American Cab Company, testified that on June 19, 1968, at approximately 11:10 p. m., she had dispatched Martin\u2019s cab to the area where the cab and body were found.\nMrs. Betty Mack, an aunt of the defendant, testified she was given the revolver or one -similar to it by defendant\u2019s brother a day or two before she turned it over to Connors.\nMrs. Mary Mack, wife of defendant\u2019s brother, George, testified that in June of 1968 she and George were living in Evanston. Defendant came to their home late one night in June and later told her he had given her husband a gun. She could not identify the gun in evidence as being the same one.\nMarjorie Christeson testified that on June 19, 1968, at approximately 8:00 p. m. defendant and another man came to the taxicab office operated by the witness and her husband. With these two men as passengers, she dispatched a cab to an address in St. Louis. The cab was gone about 15 minutes.\nJack Canaday testified he drove the cab on the occasion described by Mrs. Christeson. He could not identify the defendant. He drove across the river to St. Louis and discharged his passengers at the \u201cfirst crossover\u201d of the highway. There were no buildings at the place where his passengers alighted from the cab.\nDefendant testified that he had bought a gun similar to the one in evidence on a Monday. He placed it in his dresser and did not see it again until Wednesday or Thursday when he took it to his brother\u2019s house in Chicago. He lived in Chicago for several weeks and then moved back to Alton with his brother and his wife. He denied being in the vicinity of the homicide. His room and dresser were open at times when he was not there.\nFollowing defendant\u2019s testimony, the court admitted, without objection, an exhibit showing defendant had been previously convicted of the offense of Theft and sentenced to the penitentiary.\nWe shall first consider defendant\u2019s contention that The People failed to prove beyond a reasonable doubt that a crime had been committed and failed to prove that the accused had committed it. Defendant argues the trial court erred in denying his motions for directed verdict.\nIn our opinion the evidence of defendant\u2019s purchase of the gun two days prior to the date of the shooting, the testimony of the firearms examiner and the evidence of defendant\u2019s being in the Alton area on that night are sufficient to support the guilty verdict. As stated in The People v. Bernette, 30 Ill2d 359, 197 NE 2d 436, at page 367, \u201cThe jury need not be satisfied beyond a reasonable doubt as to each link in the chain of circumstances relied upon to establish guilt, but it is sufficient if all the evidence, taken together, satisfies the jury beyond a reasonable doubt of the accused\u2019s guilt.\u201d\nDefendant next contends the slugs and pistol were admitted in evidence without proper foundation, arguing there is insufficient evidence that they were in the same condition at trial as at the time of the occurrence. He also contends the witness lacked the qualifications requisite to expression of an expert opinion. Both contentions are adequately answered in. The People v. Fisher, 340 Ill216, 236, 172 NE 743.\nDefendant contends that certain testimony elicited from Mrs. Christeson and Jack Canaday, and a comment of the State\u2019s Attorney during final argument, to all of which objections were sustained, were so prejudicial, that despite the court\u2019s rulings he was deprived of a fair trial.\nDuring the direct examination of Mrs. Christeson the record reflects the following:\nQ. \u201cJust relate what the conversation was between you and the Defendant.\u201d\nA. \u201cAs I remember it this boy ask\u00e9d how much it was across the bridge.\u201d\nQ. \u201cDid you dispatch the cab ?\u201d\nA. \u201cYes, I did.\u201d\nQ. \u201cDid you do anything before you dispatched the cab?\u201d\nA. \u201cYes, I asked the driver to please leave his money with me.\u201d\nMR. TRONE: \u201cI obj ect to that, Your Honor.\u201d\nTHE COURT: \u201cThe objection is sustained and the answer is stricken and the Jury is instructed to disregard it.\u201d\nMR. SCROGGINS: \u201cWhat did the driver do before he left?\u201d\nA. \u201cHe left his money with me \u2014 his bills, not his change.\u201d\nQ. \u201cWhy did he do that?\u201d\nMR.TRONE: \u201cIobject.\u201d\nTHE COURT: \u201cObjection sustained.\u201d\nMR. SCROGGINS: \u201cWas the cab dispatched ?\u201d\nA. \u201cYes.\u201d\nQ. \u201cDo you know how long the cab was gone? \u2014 just answer yes or no.\u201d\nA. \u201cApproximately I would say, ten \u2014 maybe fifteen minutes; the next call came in at 8:10.\u201d\nQ. \u201cWhen you dispatched the cab where did you dispatch the cab to ?\u201d\nA. \u201cJust across the bridge into Missouri.\u201d\nMR. SCROGGINS: \u201cDid you have another destination for this cab earlier, this same cab and these same people?\u201d\nMR.TRONE: \u201cIobject.\u201d\nTHE COURT: \u201cObj ection overruled.\u201d\nMR. SCROGGINS: \u201cThe same people and the same cab, did you have a different destination earlier?\u201d\nA. \u201cI was first asked . . .\u201d\nMR.TRONE: \u201cIobject.\u201d\nTHE COURT: \u201cThe objection is sustained.\u201d\nMR. SCROGGINS: \u201cJust state whether you had a different destination with these same two people and this cab ?\u201d\nA. \u201cYes.\u201d\nQ. \u201cWhat destination was that?\u201d\nA. \u201cSt. Louis.\u201d\nQ. \u201cWhere in St. Louis?\u201d\nA. \u201cBroadway and Taylor.\u201d\nQ. \u201cWhen did this destination change?\u201d\nMR. TRONE: \u201cI make obj ection to that.\u201d\nTHE COURT: \u201cThe objection is sustained.\u201d\nThe following appears in the direct examination of Jack Canaday:\nQ. \u201cDid you observe anything when you turned around and came back, you did turn around and come back?\u201d A. \u201cYes.\u201d\nQ. \u201cDid you observe anything when you turned around and came back?\u201d\nMR. TRONE: \u201cI object.\u201d\nTHE COURT: \u201cObj ection overruled.\u201d\nWITNESS: \u201cYes, I did.\u201d\nQ. \u201cWhat did you observe ?\u201d\nA, \u201cThe same two men on the other side of the highway hitchhiking back to Alton.\u201d\nMR.TRONE: \u201cIobject.\u201d\nTHE COURT: \u201cThe objection is sustained as to the last answer, the last part of that answer and the Jury is ordered to disregard it.\u201d\nMR. SCROGGINS: \u201cDid you see any individuals when you turned the cab around ?\u201d\nA. \u201cAs I turned the cab around ?\u201d\nQ. \u201cYes.\u201d\nA. \u201cNo, sir. You see, I had to drive further up the road to the next crossover, the crossover on the other side of the divided highway.\u201d\nQ. \u201cDid you see the two people then ?\u201d\nA. \u201cYes.\u201d\nQ. \u201cWhat were they doing ?\u201d\nA. \u201cThey were hitchhiking.\u201d\nMR. TRONE: \u201cI obj ect to that.\u201d\nTHE COURT: \u201cThe obj eetion is sustained.\u201d\nDuring Canaday\u2019s testimony on redirect the following occurred:\nMR. SCROGGINS: \u201cDid you do anything before you left the cab office?\u201d\nMR.TRONE: \"Iobject.\u201d\nTHE COURT: \u201cObj eetion sustained.\u201d\nDuring final argument the record shows the following:\n\u201cIf you believe the testimony of Mrs. Christeson he went to a cab company in Alton in the company of another individual \u2014 that a destination was fixed in St. Louis \u2014 that the cabdriver was asked to remove the money from his pocket.\u201d\nMR.TRONE: \u201cIobject.\u201d\nTHE COURT: \u201cThe objection is sustained.\u201d\nMR. SCROGGINS: \u201cI submit to you, Ladies and Gentlemen of the Jury that Elder Mack bought a 22-caliber Rohm gun on the 17th day of June, 1968 \u2014 that he was in Alton, Illinois, on the 19th day of June, 1968\u2014 that he took one cab ride which was unsuccessful.\u201d MR. TRONE: \u201cI object to that, Your Honor.\u201d\nTHE COURT: \u201cObjection sustained as to that form of the argument.\u201d\nMR. SCROGGINS: \u201cThat he took a second cab ride.\u201d\nMR. TRONE: \u201cI object to the reference that he is attempting to make.\u201d\nTHE COURT: \u201cIt\u2019s argument.\u201d\nThis court is reluctant to reserve a judgment based upon evidence sufficient to sustain it, but it is our duty to do so when the record shows defendant did not receive a fair trial. It is true the court sustained the objections of defense counsel to the testimony of Mrs. Christeson that she had asked the cabdriver to leave his money with her, but in our opinion the cumulative effect of the insinuations of the questions and the argument are so prejudicial as to have effectively deprived defendant of a fair trial. The People v. Lewis, 313 Ill 312, 320, 145 NE 149. He is entitled to a trial by a jury uninfluenced by improper testimony or argument, and the judgment is accordingly reversed and the cause remanded for a new trial.\nDefendant has argued other alleged errors which are not discussed for the reason that they are not likely to recur upon retrial. \u00a1\nThe court is appreciative of the excellent brief and argument of appointed counsel.\nJudgment reversed and cause remanded for new trial.\nMORAN and EBERSPACHER, JJ., concur.",
        "type": "majority",
        "author": "GOLDENHERSH, J."
      }
    ],
    "attorneys": [
      "Hoagland, Maucker, Bernard & Almeter, of Alton (Donald L. Smith, of counsel), for appellant.",
      "William J. Scott, Attorney General of State of Illinois, of Chicago, Morton E. Friedman, Assistant Attorney General, of Chicago, and R. W. Griffith, Jr., State\u2019s Attorney, of Edwardsville, for appellee."
    ],
    "corrections": "",
    "head_matter": "People of the State of Illinois, Plaintiff-Appellee, v. Elder Mack, Defendant-Appellant.\nGen. No. 69-137.\nFifth District.\nFebruary 26, 1970.\nHoagland, Maucker, Bernard & Almeter, of Alton (Donald L. Smith, of counsel), for appellant.\nWilliam J. Scott, Attorney General of State of Illinois, of Chicago, Morton E. Friedman, Assistant Attorney General, of Chicago, and R. W. Griffith, Jr., State\u2019s Attorney, of Edwardsville, for appellee."
  },
  "file_name": "0149-02",
  "first_page_order": 155,
  "last_page_order": 165
}