WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
NORMAN C. BARRY, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 20, 1958.
Defendant, Celia Wiggins, is seeking a review of the judgment of the criminal court of Cook County entered in a trial without a jury finding defendant guilty of involuntary manslaughter, and sentencing her to a term of one to seven years in the State Reformatory for Women. Inasmuch as defendant contends that the evidence fails to establish beyond a reasonable doubt that she was guilty of the crime of involuntary manslaughter, but rather indicates that the homicide was committed in self-defense, it is incumbent upon this court to review the record.
It appears that defendant, Celia Wiggins, age 27, lived with her "boy friend," Andrew Collins, the deceased, as man and wife. Her daughter, age 7, also resided with them. The whereabouts of defendant's husband is unknown, and the record is not clear as to the nature of defendant's occupation, if any. With reference to the sequence of events on the night of the homicide, defendant testified that at about 8:30 or 9:00 P.M. on July 16, 1955, she saw deceased, Andrew Collins, at Bud Wolf's tavern and he told her that he had taken her daughter to the movies and would pick up the child later. The record is controverted as to defendant's activities during the ensuing hours. She testified first that she went home, bathed, listened to the radio and records, but when asked whether she was on Division Street that night, she stated that she went out again and was walking and talking with diverse persons, whom she could not identify, and visited several taverns at which she had some drinks in the vicinity of Division and Wells streets. After following her own devices for several hours, defendant returned to Wolf's tavern, at about 1:30 A.M., and then went to the home of Mathis Davis, known as Milton, where she found Collins and her child visiting on the back porch. According to Milton's testimony, defendant used foul language and swore at Collins, and then the three of them left together.
Defendant, however, claims that she and Collins quarreled about keeping the child out so late, and that she left alone and went back to the tavern, apparently as a short cut to her car, but while walking through the tavern she was told to talk to Collins about his conduct earlier that evening, when he had annoyed a woman by brandishing a gun. Defendant then returned to the Davis home, took the gun out of Collins's pocket, questioned him about the woman, and left with her daughter. Defendant claims further that she gave the gun back to Collins when he tried to keep the child from going with her. Milton, however, denied that there had been any conversation about a gun or about Collins drawing it on a woman in the tavern.
On her way to her car a second time, defendant met Janis Marie, a friend, and they had a conversation. Upon discovering that her daughter was playing with Collins' car keys, defendant returned again to the Davis house; however, she did not go through the tavern this time. She called to Collins from the alley, "It's me, baby, I came to bring you your car keys." She claims that he stood on the back porch pointing the gun at her and threatened to school her. She ran back to Bud Wolf's tavern and the latter gave her a dime to call the police. She claims she telephoned the police three times that night, but apparently did not tell them who or where she was, but merely said that she was afraid of a man with a gun in the alley in the 1600 block between Kedzie and Sawyer. The police did not come to investigate, as far as she knew.
Defendant and Janis then drove to the home of Janis's mother, where they left defendant's daughter. Defendant claims she then asked Janis and her husband, B.B. Donaldson, to go home with her, because she was afraid of Collins. They first drove to a police station, apparently to find out if Collins had been picked up, or to get help; however, when told it was the wrong police station, defendant made no mention of Collins's behavior, or her fears. They could not find the right station, and drove at about 65-70 miles an hour to attract the police, but were not followed.
When they reached defendant's apartment they found Collins asleep. "B.B." testified that he woke Collins, who became angry when Donaldson told him that he wanted to talk about the trouble at the tavern that evening. They fought and Donaldson was cut on the hand as they struggled for a knife, which "B.B." said he took from Collins.
Janis and "B.B." left at about 4:00 A.M., and according to defendant's testimony, she and Collins continued quarreling, mostly about his gun, which he accused her of keeping, and also about Bud Wolf. Defendant claims that Collins threatened to kill her if she didn't get the gun, so she took it from its regular place in the china cabinet drawer. She walked around the room, arguing, and at one point he allegedly threw a fruit dish at her, but didn't hit her. Later, they both reached for the gun, which was on the cabinet, but she got it, and according to her testimony, Collins then reached for a knife, which was also on the cabinet, and said, "If you don't kill me, I'm going to kill you." She then shot him three times. However, at the coroner's inquest, the day after the homicide, defendant made no mention of any knife, but merely said that deceased was reaching for something on the stove and while she didn't know what it was, it was just more than she could take, and she shot him. She specifically stated at that time that deceased did not strike her, and that he did not have a knife in his hand when she shot him. When asked if she thought he was going to kill her, defendant said that she didn't know, but was scared.
After she fired the shots, according to her testimony, she picked up the knife and the telephone, but when she heard Collins still breathing, she dropped the phone and ran out of the apartment. The shooting took place at 5:00 A.M., and at 8:00 A.M. defendant and her father appeared at the police station. Defendant handed the gun to the policeman at the desk and told him that she had just shot her boy friend. A police officer then accompanied defendant and her father back to the apartment which they had to break into since defendant had left her keys inside. They found the apartment in disorder, with some broken glass on the floor and with deceased lying dead on the kitchen floor near the stove with three bullet wounds in his body, and three discharged shells nearby.
The prosecution also adduced testimony that defendant had threatened to kill deceased some two months before, in a telephone conversation with a Mrs. Lee, for whom deceased worked. The witness Mathis Davis (Milton) also testified that he saw defendant waving the gun around at the tavern and carrying it on her person about two months before.
On the basis of the foregoing evidence the trial court found that the defendant was guilty of involuntary manslaughter, and sentenced her to the State Reformatory for Women for one to seven years. Motions for a new trial, in arrest of judgment and for probation were overruled. After some 17 orders for stays of mittimus and numerous extensions of time for filing the bill of exceptions the cause was finally presented to this court for review by writ of error.
In determining whether the evidence established that defendant was guilty of involuntary manslaughter beyond a reasonable doubt, it is clear that after the prosecution established that defendant killed the deceased, which it did by the testimony of officer Morton Kruse that defendant came to the station at 5:00 A.M., turned over the gun, and said that she had just killed her boy friend, the burden of reducing the crime from murder to manslaughter, or to justifiable homicide devolved upon the accused. People v. Tripp, 392 Ill. 351; People v. Brindley, 369 Ill. 486; People v. Franklin, 390 Ill. 108, 111.
In the Franklin case the court stated at page 111: "It being undisputed on this record that the deceased was killed by a shot from a gun in the hands of plaintiff in error, the burden was upon him to prove circumstances mitigating, justifying or excusing his acts, unless it was sufficiently manifest from the proof on the ...