Writ of error to the Criminal Court of Cook County; the Hon.
GEORGE B. WEISS, Judge, presiding. Affirmed.
MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
DEFENSE AT TRIAL: Excusable homicide by misadventure.
JUDGMENT: After a trial by a jury the defendant was found guilty; the court entered judgment on the verdict and imposed sentence of not less than 20 nor more than 25 years. The defendant took a writ of error to the Illinois Supreme Court, which court transferred the case to this court.
(1) The charge was not proved beyond a reasonable doubt.
(2) The trial court erred in refusing to instruct the jury on the law relevant to "excusable homicide by misadventure."
(3) The trial court erroneously refused to instruct the jury on the law relevant to verbal admissions.
(4) The trial court erroneously permitted the jury to know which instructions had been requested by the State and which had been requested by the defense.
(5) The argument of the State's Attorney was prejudicial to the defendant.
EVIDENCE: Testimony of State witnesses.
Certain of the co-workers of the deceased testified in the trial, among them Mrs. Laura Coleman, who stated in her testimony that she left her place of employment shortly after 4:30 p.m. and walked to her car which was parked on Racine Avenue; that after she reached the car she saw the defendant and his wife, Lorene Wade (the deceased), standing approximately 2 feet from each other at a distance of about 10 or 12 feet from the witness. She testified that she heard the defendant say to Lorene: "Oh, you're not going with me, huh?" She stated that Lorene, while backing away, replied: "Yes, I am going," and that thereupon the defendant drew "something right fast, real shiny"; that the gun was fired and Lorene fell; that the defendant then walked to Madison Street, turned west and started running.
Mrs. Pearl Albright testified that she and Lorene used to ride to work with a girl called "Shorty"; that Lorene with the witness and Shorty had left the building in which they worked, and turned to go to Shorty's car; that Lorene was walking about three feet in front of her; that Shorty pulled the car out into the street, and the witness looked back and saw Lorene talking to the defendant. She stated that Lorene said, "I'm going, I'm going," and that she kept going backwards from the defendant, who followed her; that Lorene then told him that she was not going, at which time the defendant drew his gun and said, "I'm not kidding with you," and shot her. The witness further testified that "it looked like to me he pulled it from his belt . . . right in front . . . [with] his right hand." She stated that the defendant then started to walk west, and that she went back to her place of work to have someone call the police.
Sergeant Frank Youhn of the Chicago Police Department testified that on March 5, 1963, he saw the defendant at the 12th District Police Station at about 4:35 p.m.; that the defendant told him he wanted to turn himself in, that he had shot his wife. Sergeant Youhn asked him why he had killed his wife and he answered, "She stole my money." Sergeant Youhn stated that the defendant told him he had shot her and that he still had the gun; that the defendant took the gun out of his right-hand coat pocket and handed it to the sergeant with his right hand.
Testimony of defense witnesses:
Detective Leonard Zaleski, of the Chicago Police Department, testified that he saw the defendant on March 5, at about 5:00 p.m. at the 12th District Police Station where he and Detective Brown questioned the defendant; that the questions and ...