Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. GEORGE N. LEIGHTON, Judge, presiding. Judgment
of conviction on murder charge affirmed.
MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.
OFFENSES CHARGED IN THE INDICTMENT
Murder *fn1 and aggravated battery.
After a bench trial, defendant was found guilty of both crimes. On the murder conviction he was sentenced to a term of 15 to 20 years, with a concurrent sentence of 3 to 5 years for aggravated battery. Defendant has appealed from the murder conviction only.
Defendant's sole contention is that he was not proven guilty of murder beyond a reasonable doubt.
On August 7, 1964, Mrs. Helen Higgs held a party in her home at 6208 South Morgan Street. Among the guests were Cornelius Owens (the deceased), Eddie Anderson, and defendant. During the course of the party Helen Higgs was shot in the leg by defendant in the bathroom. Mrs. Higgs subsequently emerged from the bathroom and, according to the testimony of Eddie Anderson: (1) Owens (the deceased) was standing between the kitchen and bathroom; (2) Owens shouted at defendant either "Don't shoot her" or "Don't kill her"; (3) Anderson heard the gun fire and saw Owens fall to the floor; and (4) he (Anderson) looked at defendant and saw the gun in his hand. Anderson did not actually see defendant pull the trigger.
According to the testimony of Helen Higgs, she was shot after a brief struggle with defendant in the bathroom while the door was closed; she heard only one shot; she ran downstairs but returned in response to defendant's pleas, and passed out shortly thereafter. (Anderson testified that he heard shots coming from the bathroom and that the gun again discharged when Owens was shot.) At the trial defendant admitted having the gun in his possession after removing it from a drawer, but stated that both Mrs. Higgs and the deceased were accidentally shot as he (defendant) and Mrs. Higgs struggled over the gun.
It is undisputed that the deceased was killed by a shot fired from a gun in the hands of defendant. The defendant proffered his own testimony to show that the gun had been discharged accidentally. The trial judge obviously did not believe him. Other than in this testimony of defendant, which proved insufficient to raise a reasonable doubt in the mind of the trier of fact, the record does not disclose any mitigation, justification or excuse for the homicide, and thus the State's evidence was properly found sufficient to establish beyond a reasonable doubt all the essential elements of the crime of murder, including the requisite mental state. People v. Kelley, 29 Ill.2d 53, 59, 193 N.E.2d 21.
So far as mental state is concerned, it will be noted in the statutory definition of the crime (set forth in the footnote above) that the State need not prove that defendant intended to kill Owens, but only that he intended to do him great bodily harm, and the intent may be implied from the character of the act. People v. Latimer, 35 Ill.2d 178, 183, 220 N.E.2d 314.
In the instant case the trial judge believed the testimony of Anderson that the deceased was shot as he yelled to defendant not to shoot Mrs. Higgs. The credibility of the witnesses is for the determination of the trial court and we will not substitute our ...