Flavel Dean Fueger was indeed murdered on December 3, 1947 in Peoria,
Illinois. Herman Frederick Weber was convicted of the murder in the
circuit court of Peoria County, appealed his conviction to the Supreme
Court of Illinois which affirmed Weber’s conviction on November 9,
1948. Rehearing was denied by the Court on January 12, 1949. The
Supreme Court scheduled the execution for 14th day of January, 1949
and the conviction was carried out; Weber was executed in the electric
chair at Statesville prison becoming the 13th convicted murderer to
be executed at the Crest Hill prison, and the last to be executed in
the electric chair until it was restored to operational order in 1977.
Here is the story, according to the records of the Illinois Supreme
Court:
The defendant, Herman Frederick Weber, was indicted in the circuit
court of Peoria County for the murder of Flavel Dean Fueger. He
pleaded not guilty. A jury found him guilty and fixed his punishment
at death. Motions for a new trial and in arrest of judgment were made
and overruled.
The testimony adduced at the trial is largely undisputed. The only
important controversy relates to whether Weber, himself, shot and
killed Fueger or, instead, was a reluctant accomplice to the murder of
Fueger by a man named John Crowley, whose very existence is
questioned. Fueger was twenty years of age, a resident of, and a
student at Bradley University in, Peoria. He was last seen alive by a
person other than defendant shortly before eight o'clock on the
evening of December 3, 1947, as he drove from the university campus
toward the center of the city in a brand new 1947 Pontiac sedanette
automobile which he had purchased eight days earlier. Fueger had an
appointment to meet a young woman at 8:45 P.M. at the side entrance of
the Pere Marquette Hotel, where she was attending a party. He was
killed, the undisputed evidence shows, about 8:30 P.M. at a lonely
spot on a highway about five miles southwest of Peoria. Death resulted
from three bullet wounds, the bullets having been fired from a
twenty-five caliber automatic pistol, bearing the trade name
'Terrible,' and serial number 2096. The body, remarkably well
preserved, was not found until December 15, 1947, when it was
discovered submerged in the shallow water of a drainage ditch near a
bridge at Dickson Mounds, about forty miles southwest of Peoria, in
Fulton County.
The owner of the gun, Delores Stone, identified defendant as the man
who, armed with a knife, had stolen the gun from the glove compartment
of her automobile on the afternoon of December 2, 1947. She testified
that defendant forced his way into the car as she was unparking in the
downtown area of Peoria, ordered her to drive to the airport where he
exchanged seats with her, then drove back to the city and, after
ascertaining she had no money, took the pistol but did not take the
car. Defendant admitted he obtained the gun from the witness on
December 2.
At the time of the murder, defendant was twenty-two years of age,
married, unemployed, and resided at the home of his wife's parents in
Peoria. His mother and stepfather operated a tavern on the outskirts
of the city. In July, 1947, defendant was convicted of larceny of a
motor vehicle in the circuit court of Macon County upon a plea of
guilty and was admitted to probation. While on probation, he stole a
1946 Chrysler automobile and, subsequently, abandoned it in Iowa.
Later, having gone to Decatur to report to a probation officer, he and
Fred Wright, a friend who had accompanied him on the trip, stole a
gray 1947 Buick convertible automobile in that city and drove it to
Peoria.
On December 3, 1947, defendant left his home about seven o'clock in
the evening, driving the 1947 Buick convertible so recently stolen.
His activities during the next few hours are embodied in five separate
written confessions. About nine-thirty in the evening, defendant
returned home driving Fueger’s 1947 Pontiac sedanette and immediately
took his wife for a long drive in the new car. During the next six
days, defendant drove Fueger’s car openly in and around Peoria. On
December 9, the police discovered the car parked in a public street
and removed it to a garage for identification. About three o'clock in
the afternoon of the same day, defendant found the car was missing and
hurried home at once to his wife who told him she had heard a radio
announcement that the police had recovered Fueger’s car and were
testing it for fingerprints. Defendant then sought out his friend,
Fred Wright, and told him the police were in possession of the
Pontiac. Both Wright and defendant agreed that the latter should leave
Peoria and Wright urged him not to delay. Wright loaned defendant a
few dollars, borrowed a small sum for him from a mutual friend and
drove him to his house to pick up some clothes. Defendant's wife
joined him and they then returned to Wright's house where they all had
dinner. Wright, a witness for the prosecution, testified that
defendant told him privately he had nothing to do with Fueger’s
disappearance but that the body, if found, would be discovered at
Dickson Mounds. Weber denied that he ever told Wright the body would
be found at Dickson Mounds. After dinner, he left in the 1947 Buick
convertible, which he and Wright had picked up the previous day from
the side street where defendant had parked it on December 3. Defendant
told Wright he was going to Conroe, Texas, and that he was first going
to stop at his mother's tavern to borrow some money.
Defendant borrowed eighty dollars from his mother and proceeded
directly to Texas. He was apprehended in Houston, Texas, about forty
miles from the town of Conroe, on December 12, by R. B. Miller, a
special agent of the Federal Bureau of Investigation. Miller called
another special agent, Leo L. Robertson, to the scene of the arrest
and, together, they searched defendant and his automobile. A
'Terrible' pistol, serial number 2096, was found in the glove
compartment of the car and defendant freely admitted that the extra
set of car keys in his possession fitted a Pontiac car belonging to a
boy named Fueger. Defendant spent the night of December 12 in the city
jail and the following morning he was taken before the United States
commissioner in Houston. On the same day, December 13, he wrote out in
longhand the first of his several confessions.
City police detective, Fred W. Montgomery, who had found Fueger’s car
in Peoria, and William J. Lytell, chief deputy sheriff of Peoria
County, were assigned to bring defendant back to Peoria. Defendant was
delivered into their custody on December 18 and, during an overnight
stop at Murphysboro, Illinois , while en route to Peoria, defendant
made a second confession, again in his own handwriting. On arriving in
Peoria, defendant showed his guards the exact spot where the murder
had been committed. Defendant then made three more confessions. On the
night of December 20, following a conference with a priest, he
executed a third handwritten confession. On December 22, he gave a
statement to an investigator for the State Bureau of Criminal
Identification and, the following morning, he executed his fifth, and
last, confession.
The confessions varied in certain material respects and only the
confession of December 23, identified as People's exhibit No. 6, was
offered in evidence by the prosecution in its case in chief. Defendant
objected to the introduction of the exhibit on the ground that it had
been obtained by duress and that it was not a fair and impartial
confession. State's Attorney Roy P. Hull, the interrogator, Elsa
Parson, the stenographer, and police detective Montgomery, the
witness, testified, out of the presence of the jury, that defendant
was advised he did not have to make a statement and that it could be
used against him; that he was not abused or mistreated; that he was
not promised immunity or reward, and that his answers to the questions
and his signature on the confession were both voluntary. Defendant
testified that, when asked, he agreed to make the statement of
December 23, that he made all the answers contained in the confession,
and signed it voluntarily. He added, however, that he was willing to
make the confession only because he desired to see his wife and
mother, but admitted he did not recall anything being said about his
wife and mother on December 23. Weber added he was in fair health, but
in a broken-down condition, had in mind that he would probably 'get
off' with a life sentence, was afraid his wife would be arrested if he
did not confess and, further, that a man named John Crowley had
threatened his wife's life if he were to disclose the identity of the
true murderer, namely, Crowley.
Defendant also objected to the confession on the ground that his prior
confessions were involuntary. Attacking particularly his statement
made in Texas on December 13, defendant related that Miller and
Robertson told him his wife had been arrested as an accomplice and was
locked up in jail with a number of prostitutes; that he had a yellow
streak a mile wide because he would not admit his guilt and tell
Fueger’s parents where he had hidden the body; that his wife would be
released and cleared of all charges if he made a statement, and that
he would receive only a life sentence upon a plea of guilty. Miller
and Robertson denied the statements attributed to them by defendant,
replying that they merely relayed to defendant information that his
wife had been arrested.
The confession of December 23 was thereupon admitted in evidence and
the jury was recalled. In response to interrogatories propounded,
defendant had stated, in substance, that he left his house about seven
o'clock in the evening on December 3 and drove to the 'loop' district
of Peoria; that, after parking his car, he walked to the corner of
Franklin and Jefferson streets and waited for the first 1947 model
Buick or Pontiac to come along; that he wanted one of either of these
particular makes of automobile so he could sell it to John Crowley,
who supposedly lived at 101 Callender Street, in Peoria; that when a
1947 Pontiac stopped for a red light he opened the door and asked the
driver for a ride to the municipal airport; that the driver was
agreeable, said his name was Flavel Fueger and remarked he had
considerable time to spare; that, near a farm for old people, he asked
Fueger to stop, told him that he was going to take the car and pulled
a loaded pistol from his pocket; that both he and Fueger got out of
the car and stood in front of it; that Fueger made a grab at him and
he fired twice; that he fired a third time after Fueger fell to the
ground; that he then transported Fueger’s body in the trunk of the car
to Dickson Mounds, where he threw it over the side of the bridge, and
that he arrived home about nine-thirty, told his wife he had traded
the Buick for the Pontiac and took her for a drive in the new car.
Defendant answered that he was alone when he took Fueger’s car and
admitted making false statements implicating Fred Wright in some of
his earlier confessions.
The theory of the defense was that Weber was a victim of
circumstances; that one John Crowley had virtually forced him into
Fueger’s car; that he was an innocent witness to the murder of Fueger
by Crowley; that Crowley told him he would kill his wife if he ever
disclosed the truth, and that all confessions, both oral and written,
were false and made for the sole purpose of protecting his wife's
life. Defendant first sought to have a psychiatrist testify as to his
answers to questions following an injection of truth serum but the
results of the examination were ruled to be inadmissible.]
Special agent Miller was recalled as a witness and, at defendant's
insistence, his first confession, dated December 13, was introduced in
evidence. In this document, defendant had written that he entered a
1947 Pontiac when it stopped at a red light and forced the driver at
gun point to proceed toward East Peoria over the Cedar Street bridge;
that, upon reaching the bridge, the driver, in obedience to his
command, got out of the car, started walking, hesitated, and made a
grab at him; that he fired one shot to frighten the driver but the
bullet struck the man in the chest and he fell to the ground, and that
he then threw the body into the river, drove home, and told his wife
he had traded cars.
Miller's partner, Robertson, related that Weber had made the same
confession orally and recalled that, earlier, defendant said he had
acquired both the 1947 Pontiac and the gun from a man named Crowley.
The substance of this version was that Crowley, who was engaged in the
stolen car business, sold defendant the 1947 Buick convertible for
$500 with no down payment; that, when a fender of the Buick was
smashed, he took back the Buick and gave defendant a 1947 Pontiac, and
that when defendant left Peoria, Crowley had no money to lend him, but
filled his gasoline tank and gave him the gun.
Police detective Montgomery was also recalled as a witness. He related
that, while en route from Texas to Peoria, defendant confessed
repeatedly and, later, reduced his oral confession to writing at
Murphysboro. The gist of this confession was that Weber entered
Fueger’s car and asked to be driven to the vicinity of the airport;
that Wright followed in the 1947 Buick convertible; that the two cars
stopped in a secluded place and he shot Fueger twice when he resisted;
that Wright ran up, told him to shoot Fueger a third time, and that,
pursuant to Wright's suggestion, they put the body in the trunk of the
Pontiac and drove to Dickson Mounds where they disposed of it in a
drainage ditch.
Defendant called Roy P. Hull, the State's Attorney, to state the
circumstances surrounding his third confession. Hull related that, on
December 20, he told defendant he thought the Murphysboro confession
was inaccurate and that he did not believe he had an accomplice.
Defendant asserted he would tell the same story before a priest. After
talking to a priest called by Hull, defendant wrote out another
confession. The witness further related that he read the confession
back to defendant in the presence of the priest and pointed out new
inconsistencies. Defendant then admitted the confession was false and
it was destroyed because it involved other persons who, in the opinion
of the witness, had nothing to do with the case.
Weber then took the stand as a witness in his own behalf. With
reference to the evening of December 3, he stated that he had an
appointment with John Crowley at eight o'clock at the Jumbo Lunch Room
and Crowley was a few minutes late; that he first sold Crowley the
stolen gun and then they walked to the Pere Marquette Hotel; that
Crowley pointed out a 1947 Pontiac double parked near the side
entrance of the hotel and told him to ask the driver for a ride; that,
as he opened the door, Crowley pushed him into the front seat, jumped
into the rear seat, drew his gun and gave Fueger a route to follow;
that, later, Crowley ordered Fueger to stop and get out and walk down
the road; that he remained in the car while Crowley followed Fueger;
that he heard both men arguing, Fueger calling Crowley 'Johnny,' and
protesting, 'I didn't cross you up;' that he next heard two shots
followed by a short pause and then a third shot; that Crowley returned
to the car and ordered him to help put the body in the trunk and to
drive him back to town and that, in Peoria, he parked trunk to trunk
with a 1938 Buick coupe, as directed by Crowley, and assisted him in
transferring the body to the trunk of the Buick. According to Weber,
Crowley told him to take the Pontiac and to forget everything that had
happened because if he did not keep his mouth shut he would kill his
wife. Defendant said he did not thereafter see Crowley until two days
later when he accidentally ran across him on a street corner and that,
after repeating the threat to kill his wife, Crowley gave him back the
gun and let him keep the money Crowley had paid him for it.
As to his previous connections with Crowley, defendant stated he first
met Crowley in October, 1947; that Crowley was engaged in the 'stolen
car racket' and could provide titles for 'hot cars;' that Crowley
delivered stolen cars to him and paid him to drive them until 'the
heat was off;' that he customarily met Crowley two or three mornings a
week at or near the Jumbo Lunch Room and Crowley would give him a new
car to drive and take back the old one or instruct him to continue to
drive the old car; that, prior to December 3, 1947, he had driven five
or six cars for Crowley; that, while Crowley was supposed to live at
101 Callender Street, the only time he picked him up at his residence
Crowley came out from the side entrance of the house 100 Callender
Street; that Crowley had never visited him at his home, and that the
only persons who had ever seen him with Crowley were Fred Wright,
once, and the waitress and owner of the Jumbo Lunch Room, several
times.
Defendant next repudiated all prior confessions of his participation
in the crime. With reference to his confession on December 13, he
stated Miller and Robertson told him they had reports that articles of
clothing belonging to his wife had been found in Fueger’s car; that
she had been arrested and locked up with prostitutes, and that she
would be convicted as an accomplice if he did not make a confession
absolving her. Defendant asserted he confessed to killing Fueger with
one bullet and throwing the body in the Illinois River for the purpose
of showing his wife was not an accomplice so that she could be
released from custody and, also because he was afraid that Crowley
would kill her if he told the truth about Crowley.
As to the confession made at Murphysboro, defendant related that
Montgomery told him Fueger’s body had been found at Dickson Mounds and
it was the police theory that he had an accomplice and that the body
had been hidden for several days before it was thrown into the
drainage ditch. Accordingly, defendant confessed he had an accomplice,
Wright, and they disposed of Fueger’s body at Dickson Mounds
immediately after the killing. Defendant characterized the confession
as untrue and said that he made it only to protect his wife.
Weber next related that, upon his return to Peoria, he continued to
implicate Wright because he thought Wright had 'squealed on him' and
because Wright had lied in telling the police that, on December 9, he
confided in Wright that the body would be found at Dickson Mounds.
Following a conference with a priest on the night of December 20,
defendant wrote his third false confession which was destroyed shortly
thereafter when he admitted it was not true. Defendant added that he
told the priest he did not kill Fueger but still could not bring
himself to tell about Crowley. On further direct examination,
defendant testified that he subsequently decided to stop implicating
Wright but that, in the course of five or six lie detector tests, no
matter which way he answered the question about Wright's complicity in
the crime, the police still told him he was lying.
Lastly, defendant asserted that the confession of December 23 was
false for the same reason as all the others-because he was afraid
that, if he told the truth, Crowley would kill his wife, and that if
he did not confess he killed Fueger himself his wife would be sent to
jail as an accomplice. In addition, he stated that he had not been
permitted to see his wife and hoped that if he confessed she would be
able to visit him. Defendant acknowledged that his wife had been
released from custody prior to the confession of December 23 and,
further, that neither the Federal agents nor the local police had
mistreated him physically.
On rebuttal, the prosecution introduced in evidence the confession
given at Murphysboro and the fourth confession, dated December 22. The
confessions of December 22 and December 23 are substantially the same,
although the former is much the shorter. The principal evidence in
rebuttal, however, was directed to an investigation of the existence
of a John Crowley. Eleanor Burby testified that she lived at 101
Callender Street, that no man named Crowley ever resided there, and
that she never saw a man of this name about the premises. In like
manner, L. E. Robinson stated he had lived at 100 Callender Street for
twenty-four years and that no John Crowley ever lived there, nor did
he ever see a John Crowley there. Detective Montgomery testified that
he interviewed the owner and waitress of the Jumbo Lunch Room and both
had stated they did not know anyone named John Crowley and that they
did not recall having ever seen a person fitting Weber's description
of Crowley.
Defendant's first contention is that the trial judge erred in not
granting him a continuance. The indictment was returned on December
30, 1947. A reputable and competent attorney was appointed to
represent defendant. On January 3, 1948, defendant pleaded not guilty.
On February 2, 1948, when court convened, defendant's attorney made a
motion to continue the cause, advising the trial court of examinations
being conducted by two physicians, Dr. Walter Baer and Dr. Erwin
Turow, and requesting sufficient time for them to re-examine
defendant. The trial judge overruled the motion for continuance but
adjourned court early on Monday, February 2, the first day of the
trial, upon request of defendant's attorney. The second examination of
defendant by the psychiatrists was made between 4:30 and 7:45 P.M. on
the day named. Dr. Baer testified that he made two examinations of
defendant under truth serum, one the preceding week and one on Monday,
February 2. This second examination completed defendant's preparation
for trial. The motion for continuance was not renewed nor was
additional time for preparation for trial requested. In presenting the
motion for a continuance, no reasons were assigned and no proof was
offered in its support. From the day the indictment was returned to
February 2 when the trial commenced, defendant's attorney had
thirty-three days to devote to the preparation of the case. Under the
circumstances recounted and in the absence of a showing of sufficient
reason for delay, the motion for continuance was properly denied. The
record fails to disclose any unusual circumstances rendering the
refusal of additional time either unreasonable or prejudicial. As
observed in People v. Moore, 'It is only where the trial court has
abused its discretion in denying a reasonable time for the preparation
of the defense that a court of review will interfere with the trial
court's action in denying a motion for a continuance.' All the
witnesses who testified for defendant were present in court when the
motion for continuance was made. The record discloses but relatively
little conflict in essential matters between the evidence adduced by
the People and the defendant. Upon the conclusion of the People's
case, defendant immediately proceeded with his defense without seeking
any further delay, thereby indicating that his counsel was ready and
prepared to proceed. For the reason that defendant was neither
embarrassed in his defense nor his rights prejudiced by denial of his
motion for continuance, the motion was properly overruled.
Defendant contends that his written confession taken on December 23,
1947, People's exhibit No. 6, was involuntary and, consequently,
should not have been admitted in evidence. The gist of defendant's
contention is that the first statement or confession made in Houston,
Texas, was not voluntary and that, therefore, the subsequent
confessions made at Murphysboro and Peoria must be presumed to have
been made involuntarily until proved otherwise. Defendant insists that
he made the earlier confessions, as well as the confession at Peoria,
for the purpose of keeping his wife out of jail, because he feared for
her life and, further, because of his understanding that, if he
admitted perpetrating the crime, he would receive a life sentence,
rendering him eligible for parole in twenty years.
At the hearing out of the presence of the jury to determine whether it
had been voluntarily made, evidence adduced by the People disclosed
that a member of the police department of Peoria and a stenographer
were present in the county jail in the morning of December 23, 1947,
when the confession was made. According to the officer, defendant was
not beaten or mistreated either during the taking of the statement or
prior thereto, no promise of immunity was made in his presence, and
defendant was advised the statement might be used against him. The
State's Attorney, who was present, testified that no threat or promise
was made to induce defendant to make the statement and, further, that,
so far as he knew, defendant had not been mistreated by anyone since
his arrest. Defendant's testimony related largely to the circumstances
attending his apprehension in Houston, Texas, eleven days earlier, on
December 12. On cross-examination, he stated that after his answers
were transcribed he glanced over the confession; that he had ample
time to read it; that his hand- writing is on the margin of each page
and at the end of each sheet, and that 'I did that freely and
voluntarily. I merely glanced at each page. It took me a couple of
seconds to glance at them. I didn't care what was in it. Not at the
time. I did sign and swear to it. I was then satisfied with it.'
Confessions are competent evidence only when voluntarily made. The
question of competency of a confession is for the trial court, alone,
to decide. In determining, as a preliminary question, whether a
confession by an accused is admissible, the court is not required to
be convinced, beyond a reasonable doubt, of its voluntary character.
Although there may be evidence of promises to induce the making of the
confession, yet if there are sufficient facts and circumstances to
show that the confession was voluntarily made, there is no abuse of
judicial discretion in allowing it to be introduced. A confession is
not rendered inadmissible by the mere fact that it was made while in
the custody of the police or by the fact that it was elicited by
questions put by police officers, or others. The decision of the court
on the question whether a confession is voluntary will not be
disturbed unless manifestly against the weight of the evidence.
Defendant asserts that the confession itself contains no advice by the
State's Attorney regarding his constitutional rights with respect to
making, or not making, a statement. The law does not require a
statement of this character to be included in confessions. The
constitutional provision that 'no person shall be compelled in any
criminal case to give evidence against himself' does not include
statements and confessions by one suspected of, or charged with, crime
when the confession is not made in the course of a judicial
proceeding. The record affirmatively discloses, however, that
defendant was adequately advised of his constitutional rights before
making the confession.
Defendant directs attention to the circumstances attending the
confession written and signed by him in Texas. This confession,
described as People's exhibit No. 10, was offered in evidence by
defendant. His later confessions, identified as People's exhibits Nos.
11-A to 11-G, written and signed by him in Murphysboro, together with
his confession of December 22, identified as People's exhibit No. 12,
were offered and admitted in evidence in behalf of the People in
rebuttal, without any objection on defendant's part. The point cannot
now be made that error was committed in admitting them in evidence.
In the present case, the record is barren of evidence that the
challenged confession was obtained by threats or physical violence.
Indeed, defendant testified that no physical force was used to obtain
the confession and he does not now contend that either threats or
physical violence induced the confession made in Peoria. His own
testimony and the testimony of the State's Attorney, a police officer,
and the stenographer who were present at the time, is in complete
harmony in this regard. A consideration of all the facts and
circumstances impels the conclusion that the trial court was warranted
in deciding that the confession, People's exhibit No. 6, had been
voluntarily made and that, consequently, it was admissible in
evidence.
The third contention is that the trial court should have granted
defendant's motion to take the case from the jury after the assistant
State's Attorney informed the jury of giving him lie detector tests
and the alleged results. In his closing argument to the jury, the
assistant State's Attorney said, in part, 'He, the defendant, admitted
on the witness stand that in taking the lie detector test he did not
tell the truth when he implicated Wright as helping him in the
killing. He stated that during three times when he was taking the lie
detector test he was alone in the commission of this murder.' No
objection was interposed to the remarks now assailed. This being so,
their propriety is not open to review. Because of the brutality of the
offense and the character of punishment meted out to defendant, we are
constrained to consider the point made even though not properly
preserved for our consideration and despite the fact that it is
entirely without merit.
After the assistant State's Attorney had concluded his remarks, a
recess was taken and, in the absence of the jury, defendant's attorney
made a motion to take the case from the jury upon the ground that
prejudicial error had been committed when the assistant State's
Attorney made the quoted remarks. Defendant says, 'Careful review of
evidence regarding alleged lie detector tests reveals that the only
evidence introduced at the trial of this cause was in relation to the
preliminary investigation of this case, and then only with regard to
the supposed guilt of State's witness Fred Wright.' Defendant himself
testified that he took the lie detector test, saying, 'I think they
run me through around five or six times. * * * Well I went on the lie
detector test first, * * * I didn't want to get Fred Wright involved
in something, he was a good friend of mine, but then I was still sore
at him for saying that I told him where the body was; then I figured
out I didn't want to have him involved in it even though he squealed
on me. I felt pretty bad about having him in it. So, I told them after
he put me in the lie detector test, to take his name out of the
confession and I would make it over stating I had done everything by
myself. Fred Montgomery told me he would let Fred Wright take the lie
detector test anyway.' Defendant does not challenge the competency of
the quoted testimony. Moreover, having testified, as quoted, he is not
in a position to attack its competency. We note that one of
defendant's attorneys also commented upon the facts in evidence with
respect to the lie detector tests, 'Then the State's Attorney used the
lie detector test. What was the result? We don't know the result?'
and, later, 'There is no testimony about a lie detector.' Whatever is
proved by direct evidence or is fairly inferable from facts and
circumstances proved and has a bearing on the issue may be a fair
subject for comment by counsel during the closing argument.
Defendant's motion to take the case from the jury was properly
overruled.
Defendant's fourth contention is that the court erred in giving
instruction No. 12: 'The Court instructs the Jury that if you believe
from the evidence, beyond a reasonable doubt, that the crime of murder
was committed, as alleged in the indictment in this case and if you
also believe from the evidence, beyond a reasonable doubt, that the
defendant, shortly after the commission of the crime with which he
stands charged, fled from the State of Illinois and remained away from
the scene of the crime until he was taken into custody, such flight is
a proper circumstance to be considered in determining the guilt or
innocence of such defendant.' Defendant contends that there is no
evidence showing that he fled from the scene of the crime, as charged
in the indictment, or from the State. He says that Wright's testimony
shows, instead, that he departed from Peoria after the murder had been
committed because of a reason entirely foreign to the crime charged,
namely, because of his admitted implication in the theft of a 1946
Chrysler. Wright testified that defendant told him a warrant had been
issued for him in connection with the Chrysler and that he had heard
it read; that he loaned defendant what little money he had and
borrowed a small sum from a mutual friend for defendant; that
defendant said he was going to his mother's place and from there to
Conroe, Texas, adding, 'He told me that the boy's body, if found,
would be found at Dickson Mounds in St. Louis. I asked him if he had
anything to do about it, and he said no, he had not,' and that, soon
afterwards, he left. In his confession taken at Peoria, defendant
said: 'I went out to Fred Wright's home and told him that the police
had picked up the Pontiac and that I had to leave or something;' that
he told Wright he needed money 'to get out of town * * * I told him
the police had picked up Fueger’s car. * * * Just before I left I told
Fred that I had killed Fueger and that his body was in Dickson
Mounds.' Defendant learned from his wife that the police had taken the
Pontiac automobile 'and that they were checking for finger prints.'
The evidence shows that he immediately decided to leave Peoria; that
he packed some clothes and borrowed what money he could, and then
drove alone to Conroe, Texas, in a Buick convertible automobile. On
December 13, 1947, defendant was arraigned before a United States
Commissioner in Houston, Texas, on a fugitive warrant charging him
with unlawful flight to avoid prosecution. In the confession,
identified as People's exhibit No. 10, defendant states that when he
learned the police had located Fueger’s car, 'I then told my wife that
I was going to shove off.' The record contains ample evidence that
defendant fled from Peoria to Conroe, Texas, for the purpose of
escaping arrest for the crimes of robbery and murder. For the adequate
reason that considerable evidence of defendant's flight from Illinois
to Texas was adduced, the instruction on flight was properly given.
Flight, of course, does not raise a legal presumption of guilt and the
jurors were not instructed that it did raise such a presumption. Nor
did the instruction direct a verdict. The fact of flight is, however,
a circumstance which may be considered by the jury in connection with
all the other evidence in the case, as tending to prove guilt.
Defendant did not request an instruction on his theory of flight and,
this being so, he cannot make complaint, upon review, that none was
given.
Defendant's fifth and final contention is that the evidence does not
sustain his conviction. The evidence recounted proved beyond any
reasonable doubt that, on December 3, 1947, defendant, armed with a
revolver stolen the preceding day, at the intersection of Franklin and
Jefferson streets in Peoria, awaited the first person driving a 1947
Pontiac or Buick automobile, with the general intent to steal his car
and, if necessary to the consummation of the robbery, to kill the
driver. Flavel Fueger happened to be the first person driving one of
these cars, a 1947 Pontiac, and, when he stopped at the intersection
for a traffic signal, defendant, in some way, by force or otherwise,
entered the car and either forced or persuaded Fueger to drive to a
secluded spot beyond the city, forced him from the car at the point of
a revolver, shot him twice, and after Fueger lay dead on the ground,
shot him once again. Defendant then placed the body of the deceased in
the trunk of his car and either deposited it in a drainage ditch at
Dickson Mounds, in Fulton County, the same night or in another place
from which he later transported it to Dickson Mounds.
The evidence narrated shows a premeditated robbery and the murder of
Fueger incidental to the perpetration of the robbery - a murder
ruthless in the extreme. Six days later, upon learning that Fueger’s
car had been recovered by the police, defendant fled to Texas in a
Buick automobile. When apprehended in Houston, Texas, he was carrying
in his pocket the keys to the ignition and trunk of Fueger’s Pontiac
automobile, and the automatic pistol stolen from Delores Stone by him
on December 2 and used by him to kill Fueger was found in the glove
compartment of the Buick car. These facts were abundantly established
by the evidence. According to defendant, for at least a month prior to
the homicide, he was participating in a 'hot car racket' with one John
Crowley. His testimony with respect to Crowley is incredible.
Defendant did not produce a single witness who had ever met Crowley
and the People's testimony is to the effect that the particular John
Crowley exists only in the imagination of defendant. Moreover,
defendant, both in signed sworn statements and in many oral
statements, declared that he alone robbed and shot Fueger.
Admittedly, defendant was in exclusive possession of Fueger’s 1947
Pontiac automobile within two hours after he was involved in the
murder. His unexplained, exclusive possession of Fueger’s car is, in
itself, sufficient to prove defendant guilty of the robbery and is
evidence in support of the charge of the murder of Fueger, apart from
recourse to his confessions or admissions. Where murder is committed
during a robbery, all participants in the robbery are deemed equally
guilty of murder and it is immaterial who fired the fatal shot. If
defendant merely sat in Fueger’s automobile while the nebulous John
Crowley shot and killed Fueger, pursuant to a brutal plan to rob him
of his car and, thereafter, helped conceal the body and appropriated
the decedent's car to his own use, he would still be guilty of
Fueger’s murder, without regard to his own admissions or confessions.
Defendant received a fair trial, and our examination of the entire
record discloses a trial remarkably free from error. He was
represented by competent counsel, as the record discloses, and he has
been ably represented upon review in this court. His constitutional
rights were adequately safeguarded. Evidence of his guilt of the
murder of Flavel Fueger is overwhelming and reasonable men and women,
as jurors, could have reached no other result than the finding of
guilty returned by them. Each of defendant's contentions argued in
this court has been carefully considered and decided, even though some
were not properly preserved for review.
The judgment of the circuit court of Peoria County is affirmed. It is
the judgment of the court that the original sentence of the circuit
court of Peoria County shall be executed on the 14th day of January,
1949, and the clerk of this court is directed to enter an order to
this effect, and furnish a certified copy of the order to the sheriff
of Peoria County at least ten days prior to the date of execution.
Judgment affirmed.
Ill. 1948
Jimw3, if you would like any clarification of this case, please ask.
It is a very interesting case.
weisstho-ga
Sources used: PEOPLE v. WEBER, 83 N.E.2d 297, 401 Ill. 584 (Internal
Citations omitted)
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