Appeal from the Fourteenth Judicial Circuit, Rock Island
County; the Hon. DAN H. McNEAL, Judge, presiding. Reversed and
Daniel J. Cunningham, defendant in this cause, was prosecuted for Attempt to Commit the Offense of Murder. This cause was tried before a jury which returned a verdict of guilty. The court denied a motion for new trial and also denied a petition for probation. Defendant was sentenced by the court to a term of not less than 10 nor more than 20 years.
On appeal in this court, defendant asserts that the Trial Court erred in the reception and handling of evidence and in ruling on objections thereto: in failing to exclude the People's psychiatrist from the courtroom and thereafter permitting him to testify partially on evidence he heard in the courtroom; in the giving and refusal of instructions; and in making rulings with reference to the final argument of the State's Attorney in the cause. Defendant also prays in the alternative that the sentence imposed by the Trial Court be reduced.
The facts in the case disclose that the defendant, Daniel Cunningham, during his lunch hour from his employment at the Rock Island Arsenal, had gone to downtown Moline on an errand to pick up a gasket for an outboard motor. He started to go back to the Arsenal but on the way stopped at a tavern in Moline. He then drank in that tavern for at least 30 minutes, drove back to the Arsenal, but was advised that he should go home and come back the next day. He then drove to East Moline and stopped at another tavern where he drank more intoxicants. He then left this second tavern and went to his home for a short period around 6:30 p.m. but left to go back to the second tavern which also served food. Defendant ate at this tavern. He is not positive where he went next but he did arrive at a tavern called the 2 x 4 Tavern. Defendant had never been in the tavern before and did not know any of the people there. After he continued drinking in the latter tavern, defendant became engaged in conversation with another customer whose name was Max Sharp. The conversation became hostile and a scuffle ensued, as a result of which defendant was thrown to the floor and was later helped up by the bartender and asked to leave. He then left the tavern, drove to his home, took a shotgun, drove back to the tavern, opened the door, and made some insulting statements about and to the people who were customers in the tavern. He began firing seven shots from the shotgun at various individuals in the tavern and struck many persons including the bartender, James Officer.
The police, following a call from defendant's wife, who was not present in the tavern, found the defendant in the tavern and found it necessary to use gunfire to subdue defendant to prevent further violence on his part. Defendant was hospitalized and treated for his wounds.
Prior to the incident referred to, defendant had held a job at the Rock Island Arsenal as an inspector for a period of 11 years. He had an excellent reputation for being a peaceable and law-abiding citizen. Defendant had never committed any crime or been in any difficulty with the law. He had been married for 11 years and had two children. He was 34 years of age at the time of the shooting.
Defendant had a grammar school education. At the age of 17 he entered the Air Force where he remained for five years, and, after receiving his honorable discharge, he moved to the Rock Island-Moline area and took the job at the Rock Island Arsenal.
Prior to August 4, 1964, he had been a moderate social drinker and usually drank only beer. He never drank at home in deference to his wife's wishes. Some of the witnesses at the time of the incident testified that the defendant, when they observed him, did not appear in a drunken state. Others, including the bartender, said defendant was high or feeling his liquor. Defendant stated that he had memory gaps as to various things that took place on the night in question and didn't know exactly how much he had to drink.
At the hospital where he was taken following his injuries received from gunfire by the police, defendant was found in a highly disturbed condition by the treating doctor, was acting wild, and had a strong odor of alcohol about him. Defendant's conduct on the night of the shooting was completely different than at later times in the hospital, when he was subdued and polite.
A psychiatrist called on behalf of defendant, testified that he had examined defendant at the request of defense counsel, in the month of October, 1964. The psychiatrist concluded that defendant being examined was a different man than the one described in the shooting incident on August 4, 1964. This psychiatrist also stated that he could determine with reasonable degree of medical certainty that on August 4, 1964, defendant, particularly during the shooting, suffered from a mental disease or a mental defect which rendered him lacking in substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. He stated that this mental disease or mental defect was produced and precipitated by an unusually large amount of alcohol which defendant had consumed from noon of that day until about midnight. The psychiatrist concluded that in a sober condition defendant could not have conducted himself in the manner in which he did.
Another psychiatrist was called on behalf of the People and testified that he had listened to various witnesses at the trial, including Daniel Cunningham, and, based on the testimony heard and other hypothetical facts propounded, in his opinion, at the time of the occurrence in question, defendant was not suffering from a mental defect or disease. He stated that defendant was able to form an intent to commit the crime he was charged with and was not sufficiently intoxicated so that the intent was negatived. He gave as one of the reasons for this conclusion, that of the witnesses who testified whom he had heard, only one stated that defendant staggered and the others did not. This psychiatrist for the State also concluded that defendant had substantial capacity to appreciate the criminality of his conduct and to conform his conduct within the requirements of law. He conceded that it is possible for a person to be in an insane condition for a period as short as half an hour or several hours or for longer periods and also stated that alcohol could produce temporary insanity and that persons in such condition could commit grave outrages of which they afterwards might remember nothing and which might appear incomprehensible to themselves.
One of the principal defense contentions is that the court erred in allowing the People to elicit answers to questions concerning the physical condition of individuals shot by the defendant. An inquiry was made by the State in the course of the trial as to the nature and effect of the injuries of various individuals who had been shot in the 2 x 4 Tavern on the night in question. When William Officer testified, he was asked by the State's Attorney to describe the extent of his injuries briefly. When the objection to this inquiry was overruled by the court, the witness was allowed to explain that three inches of the upper muscle of his right arm was struck and that the "bone was completely out." Upon defense objection requesting that this comment be stricken as prejudicial, the court responded that the answer could stand. The State's Attorney also asked whether Mr. Officer had been able to use his arm since that time and again, over objection, the witness was allowed to answer that he had "no use of the arm" because he couldn't lift his hand. The William Officer who so testified was not the same person as the James Officer who was the only victim named in the indictment which was tried. James Officer, who was the victim named in the indictment, was permitted to testify over defense objection whether or not he was still under a doctor's care and whether or not he had been able to return to work. The same line of questioning was asked as to other persons who were shot, including one who was interrogated as to whether he was able to use his right eye for vision; and another as to injuries to the right knee and loss of work as a result. Although objections were sustained to these questions, the results of the injuries were in fact communicated to the jury by the questioning (People v. Nickolopoulos, 25 Ill.2d 451, 185 N.E.2d 209).
Defendant cites People v. Nickolopoulos, supra, where a shooting had occurred in a restaurant. The defendant in that case had been drinking and the evidence was undisputed that defendant had shot the victim with a gun. In that case (where the charge was Assault with Intent to Commit a Murder) the issue was whether or not defendant had the intent to kill or whether intoxication negatived that intent. An officer in that case testified that when he looked at the victim he observed blood on the floor and when he removed him from the stretcher at the hospital he observed blood on the stretcher. Such testimony was objected to and over further objections the victim was permitted to testify that as a result of the shooting he was paralyzed in his left leg and had a number of holes in his intestine. The Supreme Court found prejudicial error in the questions and answers and reversed on that ground alone. In that opinion the court stated (at Page 454):
"The evidence of blood on the victim's clothing, the floor and the stretcher and the evidence of the extent of the victim's injuries was irrelevant and improper. The question concerning the victim's condition in the hospital was likewise improper and even though an objection to this question was sustained, the jury was informed as to the victim's condition. ...