Appeal from the Criminal Court of Cook County; the Hon. GEORGE
FIEDLER, Judge, presiding. Affirmed.
MR. PRESIDING JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.
Defendant was convicted of murder and sentenced to life imprisonment. However, the conviction was reversed and remanded for failure of the trial court to instruct the jury on manslaughter. People v. Canada, 26 Ill.2d 491, 187 N.E.2d 243. On September 12, 1963, a second jury found defendant guilty of voluntary manslaughter and the court sentenced him to a term of six to twelve years. Defendant appealed to the Supreme Court which transferred the case here.
Defendant and William Cunningham, deceased, both resided in a rooming house located at 5225 South University, Chicago. Defendant's room was on the first floor of the building and Cunningham's was situated directly over defendant's. Mrs. Irma Pickens, the key witness for the State, rented a basement apartment on the premises. Unless otherwise indicated, it is from her testimony that the recital of facts in this opinion was derived. About 1:15 a.m. on November 27, 1960, an argument developed between defendant and deceased over whether deceased had informed the landlady that defendant had been making noise. Deceased denied making such a statement, but defendant advanced up the stairs toward deceased, stopping on the way to break a glass against the wall, and engaged the deceased in further argument. A fight started, but other tenants intervened. Defendant then ran downstairs to his room and when he returned to the second floor he carried with him a glass of liquid, a club, and two knives in his back pockets. Deceased reappeared from his room with a hatchet and a hammer, and the two men resumed their fight until it was again broken up by neighbors. At about 2:00 a.m., when deceased was leaving the rooming house, defendant struck him with a club and chased him out of the building. Deceased returned to his room shortly thereafter with a girl friend, and after a period of time left the building to walk her home. At approximately 3:30 a.m. deceased reentered the building. At this time defendant, Mrs. Pickens, and some guests were all sitting in Sweetie Claybourn's apartment on the first floor of the building. Defendant walked over to the doorway to see who had come in. Deceased had stopped to sit down on a little desk in the hallway. The two men exchanged insults and then defendant took a knife out of his back pocket and, holding it up to deceased's throat, threatened to run the knife through him. Deceased began to walk up the stairs with defendant in close pursuit carrying a club, a knife in his right hand, and a knife in his back pocket. (There was other testimony that deceased carried no weapons at this time.) Defendant pushed deceased as he followed him up the stairs. Deceased then turned around to defend himself and brought his right hand down, knocking defendant to one knee on the stair below him. As deceased lifted his foot to kick defendant, the latter brought his knife up, piercing deceased in the right thigh, severing the femoral vein. Deceased grabbed the club from defendant and knocked him down the stairs, after which he ran up the stairs and collapsed in front of his room. (Two witnesses for the defendant disputed Mrs. Pickens' testimony that she personally witnessed the occurrence. They claimed that Mrs. Pickens came on the scene after the fight when deceased lay bleeding in front of his second-floor room.)
Mrs. Eleanor Parks, the landlady of the rooming house, testified that when she arrived on the premises at approximately 2:00 a.m. she observed no weapons on the person of deceased, but that defendant had a knife in each pocket of his pants and a container in his hand with something in it which an onlooker described to her as acid. She also testified that she had observed defendant chasing deceased around the building; that she returned to her own apartment after requesting both men to remain peaceful; that at about 3:30 a.m. defendant and Sweetie Claybourn appeared at Mrs. Parks' apartment, and defendant said to her: "You better call an ambulance because I have cut Cunningham and he lying up there."
Two police officers who were summoned to the scene of the occurrence testified that they heard defendant answer, "I did it" in response to an inquiry as to who had done the cutting. Further, another police officer testified that the point and center portions of a knife were separately found on the stairs leading to the second floor, and the handle of the same knife was discovered beneath a table on the first floor.
Defendant testified on his own behalf, and his account of the occurrence was substantially different from that of Mrs. Pickens. According to defendant, when he left Sweetie Claybourn's apartment at about 3:30 a.m. deceased jumped off the desk in the hallway and struck him with a club. Defendant further testified that deceased had a knife stuck in his belt at this time, and that he hit defendant on the head and began kicking him; that he (defendant) tried to escape this attack by running into his apartment, but that deceased followed him and kicked the door open. Defendant then stated that as he reached for a fruit bowl to defend himself, deceased ran out the door, stumbled in the hallway, and ran up the steps. Defendant said he first learned of deceased's injury when he heard Mrs. Pickens "hollering" that someone was bleeding.
Defendant first contends that he is entitled to discharge under the four-month statute then in effect, which provided as follows:
Any person committed for a criminal or supposed criminal offense, and not admitted to bail, and not tried by the court having jurisdiction of the offense, within four months of the date of commitment, shall be set at liberty by the court, unless the delay shall happen on the application of the prisoner, or unless the court is satisfied that due exertion has been made to procure the evidence on the part of the People, and that there is reasonable grounds to believe that such evidence may be procured at a later day in which case the court may continue the cause for not more than sixty (60) days. . . . Ill Rev Stats (1959), c 38, § 748.
On November 30, 1962, the first conviction of defendant was reversed and remanded. People v. Canada, 26 Ill.2d 491, 187 N.E.2d 243. The case was redocketed on February 8, 1963, and continued until February 27, 1963. On that date defendant was arraigned, and the cause was continued to April 8, 1963. The record shows that this continuance was at the request of both the State's Attorney and defendant's counsel. After several more continuances at the request of the State, on July 16, 1963, defendant entered a motion for a discharge under the four-month statute. This motion was denied. On August 6, 1963, defendant made a motion for a reconsideration of the petition for discharge, but the court reaffirmed its previous denial of the petition. Also on August 6, 1963, the State moved for an extension of time under section 748 of the statute quoted above. The court granted this request and the cause was continued to September 9, 1963, on which date the trial was commenced.
Defendant's contention that the four-month statute compels his discharge may be subdivided into two basic aspects:
1. That the State's failure to bring defendant to trial within four months of November 30, 1962 violated the terms of the four-month statute.
2. That the trial court erred in granting the State's motion for an extension of time on August 6 because the State failed to show good cause why such an extension should have been granted. The effect of the court order of August 6, 1963, was to defer the trial of defendant to a date beyond the four-month period commencing April 8, 1963.
On February 27, 1963, defendant's counsel appeared at the arraignment of defendant. The record shows that at that time she questioned the court as to the proper procedure to employ if she were to request a continuance. The court responded that her request for a continuance would be granted. In addition, the court informed her of the importance to the State of the four-month ...