Writ of error to the Criminal Court of Cook County; the Hon.
HAROLD P. O'CONNELL, Judge, presiding. Reversed and remanded with
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.
Defendant appeals from a conviction of murder and the sentence of fourteen years, after a bench trial. *fn1 He urges that he was not proved guilty beyond a reasonable doubt but that in any event he was guilty of manslaughter and not murder.
The testimony of Albert McClinton, the State's main witness, reveals that on the night of June 2, 1961, he, Claude Jenkins, a Mrs. Brown and the defendant were drinking and talking on a porch at 3310 South Indiana Avenue in Chicago; that a man he did not know, John Stenneth (hereinafter referred to as the deceased), approached and demanded that they gamble; that when he was refused he drew a knife and started toward them; that McClinton grabbed two bottles and told deceased he would hit him if "you comes up on me with that knife"; that defendant and Jenkins told McClinton to come back but that every time he turned deceased ran up and tried to cut him; that defendant and Jenkins came up and backed deceased down the street; that deceased was cutting at both of them but that he did not see either defendant or Jenkins get cut. McClinton further testified that defendant threw a brick which hit deceased and knocked him down; that all three ran up and stood around the deceased; that defendant picked up deceased's hand with the knife in it and said "he would cut his throat with his own knife"; that he cut the deceased and walked away. McClinton then said "You shouldn't have cut the man. I told you not to cut the man, I told you not to cut the man" and defendant answered: "You told me not to cut the man. He cut me."
Jenkins' story of the beginning of the incident was corroborative of McClinton's. He also testified, as a court's witness, that when deceased started down the street:
Leroy [defendant] came up between us and the man started up to him. The man went between the cars and Leroy and I walked down the street toward him and Mac was behind him. The man was swinging the knife.
Stenneth was swinging the knife. I thought I saw two knives in the man's hand. I ran in between them and pulled Walker back and was cut on the left arm. I noticed I was cut and the blood was running down my arm. I went on upstairs then. I was only a few doors from my house when I got cut. I did not see the man being hit with the brick.
Defendant's testimony tells his version:
I did not know John Stenneth and had never seen him before. I had one shot of gin on the porch and had one beer earlier in the day. I was not intoxicated. When Stenneth came in the yard he used a lot of vulgar language and said he wanted to gamble. I never talked to him but I heard McClinton talk to him.
He pulled out his knife after he put his money back and jumped back and forth.
I saw the knife, it was like the one you have there. I was sitting on the porch at this time on the North side by the bannister. When he pulled the knife, McClinton jumped. When McClinton jumped up, he stepped back. McClinton then left the steps and got the bottles. The man started approaching him and he slapped the bottle against the fence and broke the head off.
The man started backing away from him. He kept the bottle in his hand. The man was a little way from the stairs when McClinton broke the bottle. He backed out to the sidewalk and McClinton walked out towards him. He started walking back but he didn't face his back South. He and McClinton started swinging at each other with the bottles and the knife.
I saw that the deceased had two knives. McClinton did not turn back, he and the man were swinging at each other. I hollered at McClinton and told him to come back. I did not hear Jenkins say anything. McClinton did not come back but he did answer me.
McClinton screamed and said he couldn't get away from the man, that if he tried to leave the man would cut him in the back. This was about 4 houses down and I couldn't see too much. I got off the stairs and went down there. I didn't see Jenkins go down. I grabbed McClinton by his arm and told him to come on. He turned and walked back. As we got about two steps, the man ran up to McClinton and I got cut on the arm.
I saw that Jenkins had been cut on the arm. But, I didn't see the deceased cut Jenkins. Jenkins ran up about a step ahead of me and the man was cutting.
I did not have a knife. When Jenkins ran up ahead I did not see McClinton. I got close enough to this man to cut him. McClinton got close enough, I guess, to cut him too. They were swinging knives and either one of them could have been cut. Jenkins was about 2 feet from the deceased. I did see blood on Jenkins.
After I got cut, I ran and got a brick and threw it at the deceased. I don't know if the brick hit ...