Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. GEORGE FIEDLER, Judge, presiding. Judgment
MR. JUSTICE BRYANT DELIVERED THE OPINION OF THE COURT.
This appeal comes from a conviction of voluntary manslaughter entered June 9, 1964 in the Circuit Court of Cook County, Criminal Division. The appellant urges as grounds for reversal that he was not proven guilty beyond a reasonable doubt and that certain evidence was not properly admitted at his trial. He was tried by the court, a jury having been waived.
The appellant is accused of killing one William Neiswander on Christmas night, 1963. Richard Watt, Neiswander's roommate, testified that the last time he saw the deceased prior to December 25, 1963 was on December 22, at which time he was healthy and alive. Watt stated that on December 25 he returned to their apartment at 1430 North Dearborn, Chicago, and found Neiswander lying on the floor, and that the drapes in the apartment had been pulled down, a table broken and that lamps were on the floor. The witness identified two photographs which, he said, accurately portrayed the deceased and the room as he found them.
A police officer, Harold Grazer, took the stand and also identified the photograph of the deceased as a true and accurate portrayal of the body. Another police officer, Anthony Marubio, testified that on December 25, 1963, he and his partner, Patrick Touhy, arrived at the deceased's apartment just prior to midnight and observed that the furniture was damaged, that the curtain from the pullman kitchen had been ripped loose, that there was blood all about the body of the decedent and that blood and fecal matter were on the walls. This witness also identified photographs of the deceased and of the apartment as true and accurate representation of the conditions he observed that night.
Officer Marubio further testified that he found portions of the deceased's clothing scattered throughout the apartment. He testified that when he saw the deceased, he was clothed solely in his T-shirt, shoes and stockings. Officer Marubio said that upon further search of the apartment, he found a key with a piece of string and a tab with the name of the Walton Hotel and a room number. During the course of the examination, this witness also identified a T-shirt and a frying pan which he described as being covered with blood when he found it in the living room of the deceased's apartment.
Officer Marubio then testified that he and his partner went to the Walton Hotel at shortly after 3 a.m. December 26 to the room the number of which appeared on the key tab found in the deceased's apartment. This was the room occupied by the appellant. They knocked at the door and identified themselves as police officers, and were invited in by the appellant. The appellant gave the officers permission to search his room. In the dresser were found two T-shirts of the same size and manufacture as that found in the deceased's apartment. The search also revealed a pair of pants with what appeared to be blood on them.
The appellant was taken into custody, and Officer Marubio took a statement from him. This statement shows that it was made at 4:30 a.m. on December 26. In this statement, the appellant described the events of that night as follows:
"I left the house about 8:30 p.m. and went to Shey's bar and I stayed till about 11:30 p.m. and went to Jamies on Clark St. about 1100 or somewhere close to that, then this guy approached me. He asked me to come to his place because I had said I was tired. The guy tried to play a little bit and I disapproved and so I hit him, after I hit him I stomped on him and from then I went to bed and when I woke up about three hours later and shook him he did not move. So I got scared and left real fast. That's about all I went to the bar again and then went home until you guys got me."
Upon further questioning, the appellant related that the deceased had asked to be hugged and kissed. "I refused and hit the guy; I hit him a few times and kicked him a few." Appellant stated that he hit the deceased with his fist from three to five times and that he kicked him from three to six times. The statement then reads as follows:
"Q. You stated after you hit him and kicked him you went to bed and slept for about three hours and when you awoke you shook William Nieswander and he did not move; did you have an opinion of his condition at this time?
"A. Well, I thought he was dead."
When asked in what part of the body he kicked the deceased, the appellant stated, "The head is where I kicked him, I placed my foot on his throat afraid he would scream."
Another statement was taken from the appellant approximately two hours later. This statement shows he was questioned by an assistant state's attorney, and the statement was taken by a court reporter, Paul Elsing. Officers Marubio and Touhy were also present when this statement was made. This statement is substantially the same as the one made earlier that morning. The appellant identified the T-shirt found in the deceased's apartment as being his. He described his condition on the evening in question as being "pretty stoned."
Paul Elsing, the shorthand reporter, testified that the transcript of the second statement was a true and accurate transcription and that he recorded everything that ...