Appeal from the Circuit Court of Tazewell County; the Hon.
JOHN T. CULBERTSON, JR., Judge, presiding. Judgment of conviction
Rehearing denied February 16, 1967.
This is an appeal by Defendant-Appellant, Larry Joe Post, from a judgment of conviction for involuntary manslaughter entered by the Circuit Court of Tazewell County pursuant to the verdict of a jury and for which Defendant was sentenced to a term of 5-10 years in the state penitentiary.
Defendant's version of the incident giving rise to this action, as presented by his voluntary statement admitted as evidence, and his testimony given at the trial, is that on September 18, 1964, the Defendant resided at 816 1/2 State Street, Pekin, Illinois. Defendant's house is located on the rear of the lot facing east toward North 9th Street directly behind the Hundt house which likewise faces on North 9th Street between State and Catherine Streets. An east-west alley runs along the south side of both the Hundt and Defendant's houses. On the night of September 18, 1964, Defendant and his wife were seated in their living room watching television. Defendant noticed that a car turned into the alley from North 9th Street, stopped, turned off its lights and then backed onto North 9th Street and parked. Shortly thereafter Defendant noticed a person walking along the alley "in a suspicious manner." Defendant became alarmed because prowlers and strange noises had been prevalent in the area. Defendant told his wife he was going outside to investigate, first securing from a bureau drawer a loaded 22 pistol. His wife indicated her desire to go along and they then went out of their front door. Seeing no one in the alley to the south they proceeded along the north side of their house to the rear area at which place Defendant's wife exclaimed that someone was on the fence. Defendant observed a person climbing on the fence leaning on the house near the bathroom window. He shouted for the person to stop and advanced toward him. The person climbed down from the fence, and ran around the corner of the house back into the alley and then ran east in the alley toward North 9th Street. Defendant then ran around the north side of his house running east toward his front yard. When he reached the front yard he ran to the fence along the south side of the property at the same time observing the person running east in the alley. He again shouted for the person to stop which command was disregarded and he continued to observe the intruder running east until his view was obscured by the Hundt house. Defendant testified that although he did not see a person get into a car he heard a door slam, engine start and a car start north with a screeching of tires. Defendant ran back to the north side of the front yard hoping to see the car as it proceeded north. Defendant's view of the car was through the six-foot space between the Hundt house and the garage located on the next lot to the north. As the car sped north and while viewed by Defendant through the space between the Hundt house and garage, Defendant claimed that he discharged his pistol into the ground to scare the prowler away. After a few moments Defendant and his wife returned to the house, Defendant returning his pistol to the drawer. Defendant and his wife went to bed at 10:30.
Dennis Hundt, a boy 13 years of age who resides in the house directly in front of Defendant's house, testified that he was watching television at the time of the incident. He stated that his dog started barking on the porch, that he heard footsteps in the alley, that he saw no one in the alley but did see a car parked across the street. He resumed his television watching and several minutes later the dog again started barking and he saw a person running down the alley toward the car. As the person started to get into the car he heard a sharp noise which he thought could have been a shot being fired. The automobile started north on North 9th Street very fast with tires squealing. It went north past the first intersection for some distance and then went into reverse and came to rest at the intersection with its motor running. In cross-examination Defendant attempted to show that the noise which this witness heard might have been a noise other than a shot or might have occurred after the automobile had started north.
A passing motorist discovered Gary Nall, age 17, dead in his car at the intersection. Neither Defendant nor his wife knew Nall nor was any explanation of Nall's presence in the neighborhood offered.
At about 1 o'clock in the early morning hours of September 19 Pekin police officers called at the house of Defendant arousing him from bed. They asked him whether he had heard any unusual disturbances in the neighborhood, to which Defendant replied, "no." Inquiries were also made concerning any guns which the Defendant might have. Two rifles hanging on the wall were discussed, the Defendant commenting that they had not been fired for a long time. It does not appear that during this conversation the death of anyone in the neighborhood was revealed nor did Defendant reveal his possession of the pistol. Defendant explained his failure to mention his firing of the pistol because of his fear of being charged with the discharge of a weapon within the city. After the officers left the house Defendant removed the remaining shells from the pistol and transferred them to one of the rifles.
The police officers returned to the house the next morning after Defendant had gone to work and secured possession of the two rifles for investigation. It was discovered that one of these rifles contained five hollow-nosed 22 caliber shells. Later on the morning of September 19, after the coroner had removed the bullet which caused Nall's death finding it to be a hollow-nosed slug of small caliber, the investigating officers asked the Defendant to come to the police station for further questioning. At that time they advised Defendant that Gary Nall had been killed and that it was either an accident, manslaughter or murder. Defendant then stated that it was an accident, related the details of his conduct on the previous night and took the police officers to his house where he showed them the 22 caliber pistol. Thereafter Defendant signed a statement relating the details of the incident.
The bullet which was removed from Gary Nall's body was slightly flattened on the nose and one side. Ballistics tests were inconclusive, there being insufficient microscopic markings to make test comparisons. At the trial a pathologist testified that the bullet so removed entered Nall's back, severed the aorta causing massive hemorrhaging into both cavities surrounding the lungs thereby causing death. The pathologist also testified that the trajectory of the bullet was more or less parallel to the ground and that the flattening of the bullet might have been caused by contact with bony structures in Nall's body. According to the witness, death occurred very shortly after the wound was inflicted probably within a period of five or ten minutes at most.
Defendant's wife testified, pursuant to a subpeona by the prosecution, corroborating Defendant's account of the circumstances leading up to the firing of the pistol. In her testimony she indicated that the discharge of the weapon occurred as the motor vehicle was proceeding north and while the car could be viewed through the six-foot space between the house and garage. Momentarily after the discharge she observed the gun in her husband's hand pointing in a downward direction. She also indicated that the night was dark but did not testify precisely as to the direction the weapon was pointing prior to or at the moment of discharge.
Defendant was indicted on three counts charging murder and two counts charging involuntary manslaughter. He was found guilty by the jury on one count of involuntary manslaughter and not guilty on all other counts.
Defendant relies on two assignments of error in seeking reversal of the judgment of the trial court. First, that the evidence is insufficient to sustain the conviction for involuntary manslaughter. Second, that the court erred in submitting the murder counts of the indictment to the jury along with the counts charging involuntary manslaughter, there being insufficient evidence to sustain the murder counts.
Defendant argues that the evidence is insufficient to support his conviction of involuntary manslaughter in that there is no evidence that Defendant shot deceased and that in any event Defendant's conduct constituted ordinary negligence only.
It is true the ballistics evidence relating the bullet removed from Nall's body to the pistol owned by Defendant is inconclusive. However the absence of technical ballistics evidence does not warrant the conclusion of Defendant that evidence is lacking that Defendant shot the deceased. From the testimony of persons involved in and having knowledge of the incident giving rise to this action the record discloses ample ...