Writ of error to the Criminal Court of Cook County; the Hon.
HAROLD P. O'CONNELL, Judge, presiding. Affirmed.
MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.
In a bench trial defendant was convicted of murder and on November 17, 1961 he was sentenced to a term of twenty years. *fn1 On writ of error, review was sought in the Supreme Court which has transferred the case to this court.
The facts are essentially undisputed, and the sole point raised by defendant is that he should have been found guilty of voluntary manslaughter only.
In 1961 defendant was 47 years old. He had been living with Babe Butler for some 25 years. He testified that he loved her. She was 4'9" tall and was 84 years old.
Shortly after midnight on August 12, 1961 defendant and three co-workers at the steel plant finished work for the day. On the way home in a car they consumed some whiskey and beer. Defendant invited the others to indulge in more of the same at his apartment and they accepted. When they arrived there at about 12:40 a.m. there were no lights on in the apartment. Upon turning on the light, defendant saw Babe in bed and one Fat standing at the foot of the bed. Both were fully clothed. Defendant was acquainted with Fat but did not know him by any other name.
Defendant proceeded to get out a half-pint bottle of whiskey. He then told his friends to go into the breakfast room where they resumed their drinking. Fat, exhibiting either a high degree of savoir faire or, as argued by defendant, extreme effrontery, asked defendant for a cigarette. Being told by defendant that he didn't have any, Fat departed from the premises. As he was leaving, Miss Butler said to him, "Stop in, come back."
The supply of whiskey was exhausted by 1:05 a.m. so defendant and friends walked to a nearby tavern where they stayed until it closed at 2:00 a.m. They then went to a "chicken shack" and ate some fish and chips. From there they walked back to defendant's apartment shortly before 4:00 a.m. The three friends got in their car and left.
Defendant saw a light on his porch. When he walked in, Fat walked out and said, "I'll see you all." Babe was in bed with her nightgown on. Defendant asked her what was going on. She replied something which he didn't understand. He got a gun from the kitchen, filled it with cartridges, and asked her the same question again. Sitting on the side of the bed, she again replied, but her answer was still unintelligible to defendant, so he shot her in the face, the chest, and through the arm. Another bullet hit the bed and two others were buried in the wall. Defendant got a wet towel from the kitchen and wiped Babe's face. He "noticed she was dead."
Defendant was so upset he was unable to call the police. He knocked on a neighbor's door, told him that he had killed Babe, and asked him to phone the police. The neighbor inquired of defendant if he was drunk, but defendant told him that he was not.
The police arrived in a short time and were told by defendant, "I done killed Babe." They confirmed that she was dead, and found six expended shells in the revolver which was on top of the oil stove. Defendant identified the gun as the one he had used to shoot Babe. (Ballistics tests later confirmed this fact.) One of the police officers testified that defendant "seemed normal, not like he was drinking." Defendant was arrested and taken to the Criminal Court building where he gave a written statement setting forth the pertinent facts as outlined above.
At the trial defendant's counsel stated that defendant "admits the facts of the charge and, in effect is pleading nolo contendere to the charge of murder but would plead guilty to voluntary manslaughter." His offer was not accepted and the trial proceeded on a plea of not guilty to the indictment which charged murder only.
Murder and voluntary manslaughter were defined in Chapter 38 of the Illinois Revised Statutes (1959) as follows:
Murder is the unlawful killing of a human being, in the peace of the people, with malice aforethought, either expressed or implied. The unlawful killing may be perpetrated by . . . shooting, or by any other of the various forms or means by which human nature may be overcome, and death thereby occasioned. Express malice is that deliberate intention unlawfully to take away the life of a fellow creature, which is manifested by external circumstances capable of proof. Malice shall be implied ...