(No. 23834.

#### The People of the State of Illinois, Defendant in Error, *vs.*Merwin Lewis *et al.*Plaintiffs in Error.

*Opinion filed February 12, 1937*

Rehearing *denied April 8, 1937.*

Henry C. Ferguson, for plaintiffs in error.

Otto Kerner, Attorney General, Thomas J. Courtney, State’s Attorney, and A. B. Dennis, (Edward E. Wilson, John T. Gallagher, Blair L. Varnes, and Melvin S. Rembe, of counsel,) for the People.

Mr. Justice Shaw

delivered the opinion of the court:

The defendants, Merwin Lewis, McKinley Jones and Jesse Jones, were indicted, together with Isaac Jones, in the criminal court of Cook county, for the murder of Booker Martin. Isaac Jones was not tried, but the other three, having waived a jury, were tried before the court and found guilty of manslaughter. They bring the case here on writ of error.

The deceased, Martin, was killed in a free-for-all fight in a gambling house operated by a colored woman in Chicago, and the only question for decision is the sufficiency of the evidence.

The evidence of the witnesses is highly conflicting, and the record, as a whole, is extremely confusing. From it *558but very few things stand out as being clearly proved beyond any reasonable doubt. The gambling house in question was run by Mrs. Jean Brown, assisted, at times, by an inmate known as Agnes Hodges. It was an ordinary apartment in a flat, consisting of a front room, a long and narrow hallway from which two bed-rooms open, with a kitchen and bath-room at the end opposite the front or living room. There seem to have been a front stairs and a back stairs, but the record gives us no great amount of information as to the size of the various rooms. It also seems from the record to have been well known, and in fact advertised, that Mrs. Brown ran a “crap” game every week, and it further appears that the defendants were regular attendants at these games. The People’s witness Ira Franklin was known as the “stickman,” running the game for Mrs. Brown, and was admittedly her lover. The People’s witnesses Walter Watkins and John Wilson appear to have been part of a “bouncing gang,” consisting of themselves, the deceased, Booker Martin, Russel Clark, Ira Franklin and a lad named Dennis. The record shows that the defendants and the deceased,- Martin, were entire strangers prior to the fatal encounter. ■ On the night of December 6, 1935, when the fight took place that resulted in Martin’s death, the defendant McKinley Jones had been at the gambling house in question until about 1 :oo o’clock. At this time either he or some other player made a charge that the dice were “crooked” and demanded his money back. A fight started, and everybody ran away before the police came. Later that night, at about 4 :oo A. M., McKinley Jones came back to the place, accompanied by his brothers, Jesse and Isaac Jones, and Merwin Lewis. Everything appears to have been fairly peaceful for a time and a new game was organized in the kitchen on a blanket. The testimony of the witnesses varies, but there were undoubtedly somewhere between fifteen and forty people present in the flat at that time. Shortly after McKinley Jones came back, *559the so-called “bouncing gang” arrived and was admitted. It was not long then until the fight started.

The report of the coroner’s physician was in evidence by stipulation and showed the death of the deceased to have been caused, in his opinion, by a stab wound in the right lung. This report showed that except for two stab wounds, one in front and one in the back, the injuries to the deceased were trivial and superficial. He seems to have had one black eye and several scratches or small lacerations but no other serious injury. Except for the discolored eye and two scratches near the eyebrows his head was uninjured.

As to the fight which produced this fatal result and the many injuries to others present, there is a hopeless confusion of testimony, from which we find it impossible to arrive at any conclusion that can be said with any certainty to be the truth. Jean Brown, the keeper of the house, did not see the fight at all. The inmate, Agnes Hodges, testified that defendant Lewis started the fight by hitting the witness Watkins with a knife, and that the three defendants, with the missing Isaac Jones, had the deceased on his face in the hall; that Isaac was hammering the deceased over the head with a hammer and the defendants, Lewis and Jesse and McKinley Jones were cutting him; that the deceased was lying on his face in the hall when Jesse Jones and Isaac Jones jumped on him and started cutting him and when Isaac Jones hit him over the head several times with a hammer.. The confusion of the witness Hodges’ testimony is such as to make it difficult to even try to state its substance. She said that everyone was excited and trying to get out, the same as she was; that the three defendants and Isaac Jones had the deceased on his face in the hall while Isaac hammered him over the head with a hammer and Lewis and Jesse and McKinley Jones were cutting him. In the next sentence she said she went down the back stairs, where she ran into McKinley Jones and Lewis, who drew knives on her and made her come back *560up-stairs; that there she saw Martin on the floor and started to help Isaac and Jesse cut him. How he got on the floor or who put him there, or whether he was then alive or dead, is not shown. The condition of the corpse showed conclusively that Martin had not been struck over the head with a hammer, and that .there was but one wound in his back, namely, a half-inch stab wound. It is impossible to believe the testimony of the witness Hodges. It contains other serious discrepancies which brevity compels us to omit.

Quite contrary to the testimony of the Hodges woman, the witness Walter Watkins testified that the fight was started by Jesse Jones cutting at the witness. He testified that he fought for a while with a hammer, which he dropped and picked up a gun_which was lying on the floor but found no cylinder in the gun; that he went down the back stairs and jumped out a window. He testified quite positively that Lewis did not start the fight but was in front and came back afterwards, and that Lewis did not call the other fellows; that the witness saw McKinley Jones and the deceased fighting in the kitchen, and that he and the deceased left the kitchen at the same time. Apparently he did not see any stab delivered to the deceased. The next witness, John Wilson, said that one of the defendants whom he could not identify started to fight with Watkins, and that the deceased was standing next to the stove, behind everything. While Watkins testified he fought with a hammer, this witness was quite positive that Watkins did not have any hammer at all, and that he did not see anybody have a hammer.

The witness Ira'Franklin, “stickman” in the crap game, testified that when he and the other five members of the so-called “bouncing gang,” arrived at the gambling house everything was quiet; that Merwin Lewis came down and let them in and there seemed to be no disturbance; that he went into the bed-room and then into the bath-room talking to another fellow, and that there were several fel*561lows there; that he heard a noise like a table falling, and then stepped into the hall and saw Booker Martin, the deceased, lying on the floor in the hall; that the defendants were stabbing the deceased, and that Isaac Jones had a hammer in his left hand but did not use it. This was the only evidence for the People as to the actual fight which resulted in the death of Martin.

The defendant McKinley Jones testified that he was standing outside the kitchen door when the fight started and that someone came but of the kitchen and knocked him down with a hammer; that as he was getting up he was hit in the back with a hammer and knocked down again, and then someone kicked out one of his teeth; that he got out his knife and grabbed two persons around the legs, and the three of them fell together down the back stairs, one fighting him with a hammer and the other one with a knife; that he cut both of them several times, and that they cut and beat him with a hammer until he lost his knife; that he came back up the stairs, and that there were about twelve people fighting and running in the hallway, through whom he worked his way to the front door and got down the front stairs, where someone knocked him down with a club. He seems to have been bleeding from the head, nose and mouth at that time, and his scalp was broken open so he had to be taken to a hospital and have it sewed up.

Defendant Merwin Lewis gave the following version of the fight: “Mrs. Brown got a blanket and said, ‘Come back, boys, we are going to start another crap game.’ She spread the blanket on the table and made a dark, heavy-set man the stickman. The game started. Several people shot dice; then everybody began drawing away from the table. The stickman said, ‘If nobody will shoot them I will shoot them myself.’ He threw down his money and said, T shoot the dice.’ A player said, ‘Let them roll.’ He shot. The player grabbed one of the dice and said he had been losing money all night; that he wanted to get the dice and take *562them to Thirty-fifth street. They are crooked. Somebody said, ‘Hit that son of a b-in the mouth!’ The stickman hit him and the fight started. Everybody was fighting. I don’t know the stickman. I saw that man with the jacket (Walter Watkins) knock Jesse down with a hammer. I snatched the hammer from him. Someone hit me on the head from behind — busted my skull and knocked me down. I got up on my knees; was hit over the right eye with a hammer. I got in the hall in the dim light. Someone cut me on the left wrist with a knife. I missed him with my hammer. I made my way to the front stairway, protecting myself with the hammer. People were fighting in the kitchen, in the rooms and in the hallway and hollering for help. I was in pain, bleeding, and covered with blood. At Forty-seventh street I saw Jesse Jones and several others cut and bleeding. McKinley came up. I had no part in cutting deceased. I had no knife before I picked up a knife down-stairs at the door. The police took the knife from me at Forty-eighth street station, after I had been to Provident Hospital.”

Jesse Jones testified that the fight started when a player insisted that the dice were crooked; that the stickman kicked the player and pushed the table over, and then everybody started fighting; that he turned around and was hit in the head with a hammer and knocked down and stomped, and that his chin hit the floor and was cut in two places; that people were fighting in the hall and hollering for help; that he was cut and hit on the forehead with a hammer; that he was bleeding, and that the wounds on the top of his head were open; that the back of his head was also gashed and cut open, as well as the left side of his forehead; that, he did not cut anybody and did not have a knife, and that as fast as he could he clambered through the hall, over men that were fighting on the floor, and got out the front door. It was his testimony that there were about forty people in *563the different rooms of the house when the fight started, and that in the front room they were drinking “moonshine” and smoking while the crap game was going on in the kitchen. It is undisputed in the whole record that none of the defendants knew the deceased or ever had any trouble 0 with him of any kind prior to the night in question. It is likewise undisputed that all the defendants were seriously wounded and badly beaten up in the melee.

Aside from the bare fact that the defendants came to the gambling house together and that three of them (the Joneses) were related, there is no evidence at all of any concerted action on their part nor of any conspiracy or plan. Bearing this fact in mind, it is clear that the prosecution must fail, because there is not even a pretense that anyone knows who struck the fatal blow. All that the record shows is confusion. But confusion cannot take the place of positive evidence resulting in proof beyond a reasonable doubt, and that is entirely lacking. The testimony of the witnesses for the People is entirely lacking in coherence. None of them corroborate any of the others in major details, and much of the testimony, as above indicated, is entirely impossible of belief. It seems to us that the defendants are entitled to as much credit as witnesses as any of those produced for the People, and that their tale of how the fight began is, on the whole, more probable. It is only certain that there was a free-for-all battle, with one dead and many wounded, but there is no word of evidence as to who struck the fatal blow. On such a record the judgment must be reversed. *People*v. *White,*333 Ill. 512.

*Judgment reversed.*