{ "id": 2646079, "name": "People of the State of Illinois, Plaintiff-Appellee, v. Wendell Thomas, Defendant-Appellant", "name_abbreviation": "People v. Thomas", "decision_date": "1968-03-11", "docket_number": "Gen. No. 51,143", "first_page": "77", "last_page": "83", "citations": [ { "type": "official", "cite": "93 Ill. App. 2d 77" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "196 NE2d 664", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "30 Ill2d 297", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2829274 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/ill-2d/30/0297-01" ] }, { "cite": "177 NE2d 120", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "22 Ill2d 601", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2790543 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/ill-2d/22/0601-01" ] }, { "cite": "197 NE2d 436", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "30 Ill2d 359", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2826177 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/ill-2d/30/0359-01" ] }, { "cite": "231 NE2d 451", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "38 Ill2d 331", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2860162 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/ill-2d/38/0331-01" ] }, { "cite": "165 NE2d 296", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1960, "opinion_index": 0 }, { "cite": "18 Ill2d 489", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5327943 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/ill-2d/18/0489-01" ] } ], "analysis": { "cardinality": 582, "char_count": 8713, "ocr_confidence": 0.628, "pagerank": { "raw": 5.99870891423483e-08, "percentile": 0.3726672867800401 }, "sha256": "0e17475fbb61937e1e82d7a7851ca74411371e16b428521c8191c90249faf55b", "simhash": "1:f78af2aef7723415", "word_count": 1497 }, "last_updated": "2023-07-14T21:30:43.606130+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "People of the State of Illinois, Plaintiff-Appellee, v. Wendell Thomas, Defendant-Appellant." ], "opinions": [ { "text": "MR. JUSTICE ADESKO\ndelivered the opinion of the court.\nWendell Thomas was indicted for the murder of Ernest Winters. The jury found the defendant guilty and fixed his punishment at imprisonment in the penitentiary for the term of thirty-three years. He prosecutes this appeal alleging the following errors:\n(1) The evidence shows that the offense committed, if any, was manslaughter and not murder;\n(2) The State\u2019s attorney prejudiced the jury by improper and inflammatory argument; and\n(3) The sentence of thirty-three years is excessive.\nBeginning in the afternoon of August 27, 1958, Ernest Winters, Frank Sims and defendant were out drinking together. At about 8:00 p. m., Barbara Davis joined the group. Winters, Davis and defendant then drove to Winters\u2019 house to pick up his wife Ernestine. Upon arriving there, Winters took offense to his wife referring to another man as \u201cbaby.\u201d He slapped her across the face and she slapped him back. The Winters got back into the car with Davis and defendant and started driving around.\nDuring the ride, the Winters began arguing again. Winters stopped the car near a vacant lot and jumped out. He picked up a stick and started chasing his wife, who had also gotten out of the car. Defendant intervened and tried to stop the Winters from fighting. Ernestine ran off down the street while the two men started pushing each other. After wrestling with Winters for a few moments, defendant ran off down the alley.\nWinters and Davis started to get back into the car when defendant reappeared. He told Winters, \u201cI am going to get my gun,\u201d and also to wait for him at 42nd and Drexel. Davis convinced Winters to drive away and find Sims.\nDavis and Winters drove to Sims\u2019 home at 814 East 42nd Street, about 1 block from the vacant lot. Sims came outside and was talking with Winters for about 10 or 15 minutes when defendant emerged from an alley just up the block. Defendant approached with a pistol in his hand and asked Winters if he wanted to continue the fight. Winters said no. There is some conflict as to who pushed whom but defendant, standing about two feet from Winters, raised his pistol and shot Winters in the chest. Winters grabbed his chest with both hands and started bleeding profusely. He staggered across the street and into the back seat of his car. Sims drove him to a hospital where he died from the gunshot wound.\nDefendant took the stand on his own behalf. He admitted all the details of the events leading up to the shooting. However, with respect to the shooting, he testified that after the first altercation he was in fear for his life. He therefore got a pistol which he put in his pocket. When he approached Winters and Sims in front of the latter\u2019s house, Winters jumped up and said, \u201cI\u2019m going to teach you about interrupting family affairs.\u201d Winters started pushing him. Defendant claimed he saw a knife in Winters\u2019 hand and Winters cut him on the wrist. Defendant tried to walk away when Winters again came at him. Defendant removed the pistol from his pocket and fired.\nSims drove off toward the hospital and defendant just walked away. He started to return to the scene, but saw \u201cthe police there and became frightened.\u201d He took a bus to Dixon, Illinois, to be with a relative. From Dixon he went to Rock Island, Illinois, then to Davenport, Iowa, and then to Detroit, Michigan, where was arrested.\nNeither Sims, nor Davis, who were both present at the time of the shooting, saw any knife or other weapon in Winters\u2019 hand. Barbara Davis further testified that the knife defendant claims the deceased bandied about was found in a pool of blood on the back floor of the car which took Winters to the hospital. Sims and a police officer, however, testified that the knife was found in a pool of blood on the street.\nDefendant\u2019s argument that he was provoked by the deceased into firing the fatal bullet is not supported by the facts. There is credible evidence to show that defendant obtained a pistol, sought out Winters and when Winters refused to continue a previous fight, defendant shot him. The question of whether this shooting was in any way justified or resulted from conduct which would constitute serious provocation is always a determination for the trier of fact. People v. Jordan, 18 Ill2d 489,165 NE2d 296 (1960).\nAs a reviewing court we will not reverse a finding of guilty unless the evidence is so unreasonable, improbable or unsatisfactory as to justify a reasonable doubt of defendant\u2019s guilt. People v. Crews, 38 Ill2d 331, 231 NE2d 451 (1967). We do not find the verdict of guilty erroneous.\nThe second allegation of error stems from the following comment by the prosecutor in his closing argument:\n\u201cBoth witnesses testified, ladies and gentlemen \u2014 \u25a0 when I say both witnesses, I mean Barbara Davis and Frank Sims \u2014 that never this night did Ernest Winters provoke this murder. Never. Did nothing. All they did was drive Thomas around all day; Thomas, the great hero, protecting the wife, Ernestine, who you saw sit on that stand and cry because her breadwinner \u2014 he might not have been such a swell fellow, but her breadwinner is gone and he\u2019s not coming back.\u201d\nDefendant claims this statement is so prejudicial and inflammatory that reversal is required. In support of this argument he cites, People v. Bernette, 30 Ill2d 359, 197 NE2d 436 (1964), and seven prior similar cases. In each of these cases a member of the deceased\u2019s family took the stand to testify that the deceased was a family man. The courts have continuously condemned such testimony as bearing no relationship to the defendant\u2019s guilt or innocence. However, in the instant case, no such testimony is involved.\nThe only case cited by defendant which discusses comments on family during closing argument is People v. Gregory, 22 Ill2d 601,177 NE2d 120 (1961). In the Gregory case the defendant was granted a new trial because of improper evidence of unrelated crimes and the following improper closing argument by the Assistant State\u2019s Attorney:\n\u201cHow serious is it for five men to take up arms, to pack five guns and go into a man\u2019s place of business where he is making a living for Jennie and for those three kids and just kill him ... he has as much right to see that Jennie and those kids aren\u2019t left alone, as you and I have . . . Mrs. Ciavirelli, who was a widow on May 7,1950 \u2014 she\u2019s going to be a widow on May 7, 1951, 1952, 1953, 1954 and every year thereafter. Lawrence and Joseph, and whatever his name is \u2014 the third one \u2014 they are going to be orphans this week, the next week, next year and forever after . . .\n\u201cAnd what\u2019s their dessert? Death to the wheel-man. Death to the coverman. That\u2019s the only thing that they deserve. That\u2019s what you have got to give them. Either that or tell Jennie, tell Jennie, sitting out there that Joe isn\u2019t important enough. If it had been somebody else maybe we would have given them the chair, but not with Joe \u2014 he\u2019s just a little tavern owner.\u201d\nIn the instant case, we do not have an extended commentary on the condition of the deceased\u2019s family, nor do we have a plea for imposition of the death penalty. In fact, the State was not asking for the death penalty. We simply do not feel that saying \u201cher breadwinner is gone and he\u2019s not coming back\u201d was so prejudicial or aggravated as to require reversal. People v. Brown, 30 Ill2d 297, 196 NE2d 664 (1964). The husband-wife relationship was an essential element of the original altercation between the deceased and defendant. It would have been impossible to exclude mentioning Mrs. Winters in the case. To say that her \u201cbreadwinner\u201d was dead was nothing more than a truism.\nThe final point raised is that the 33 years that the jury imposed is excessive. We do not agree. Defendant admits that the time imposed is well within the statutory limits. The jury obviously did not believe the defense of provocation. Defendant, with a gun in his hand, sought out Winters and shot him. This would justify the imprisonment imposed here. The term of the sentence being proper under the facts, the above quoted closing argument of the Assistant State\u2019s Attorney did not prejudice the defendant.\nFor the foregoing reasons, the judgment of the Circuit Court of Cook County, Criminal Division is affirmed.\nJudgment affirmed.\nBURMAN, P. J. and MURPHY, J., concur.", "type": "majority", "author": "MR. JUSTICE ADESKO" } ], "attorneys": [ "Daniel P. Ward, State\u2019s Attorney of Cook County, of Chicago (Elmer C. Kissane and James S. Veldman, Assistant State\u2019s Attorneys, of counsel), for appellant.", "Montgomery, Holt & Bolden, of Chicago (James D. Montgomery, of counsel), for appellee." ], "corrections": "", "head_matter": "People of the State of Illinois, Plaintiff-Appellee, v. Wendell Thomas, Defendant-Appellant.\nGen. No. 51,143.\nFirst District, First Division.\nMarch 11, 1968.\nDaniel P. Ward, State\u2019s Attorney of Cook County, of Chicago (Elmer C. Kissane and James S. Veldman, Assistant State\u2019s Attorneys, of counsel), for appellant.\nMontgomery, Holt & Bolden, of Chicago (James D. Montgomery, of counsel), for appellee." }, "file_name": "0077-01", "first_page_order": 83, "last_page_order": 89 }