Appeal from the Circuit Court of Cook County; the Hon. EDWARD
F. HEALY, Judge, presiding. Affirmed in part, reversed in part.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.
Rehearing denied January 23, 1969.
This is an appeal from a judgment in a bench trial finding defendant guilty of voluntary manslaughter of his wife, Mary Ann Ross, and of attempt to commit the murder of Martin O'Donnell. Defendant was sentenced to concurrent terms of not less than two nor more than fourteen years in the Illinois State Penitentiary.
1. Defendant was not proven guilty beyond a reasonable doubt.
2. The judgments on the two indictments were inconsistent and must be reversed.
Testimony of Martin O'Donnell, for the State
He is a pharmacist and part owner of Renneckars, Inc., a drugstore. Mary Ann Ross was working for him on June 9, 1965, and had been in his employ for about six months. On June 9, 1965, she worked a nine-to-six day; she returned to the store at about 9:30 that evening and then went to a tavern across the street. At about 11:00 o'clock he went to the tavern and saw her sitting with Walter Bauer and Bob Anderson. They all remained in the tavern for about another forty-five minutes at which point Mary Ann Ross asked if someone would follow her home, and he volunteered.
He had never been to Mary Ann Ross' home before and found it only by following her there. She arrived at home and parked her car in the rear of the apartment building, and he pulled his car in front of hers. She got out of her car and came over to the passenger side of his car. He is not sure if she got into the car. At that time defendant, Mary Ann Ross' husband, came up to the witness' car, grabbed Mary Ann Ross by the left hand and started to stab her. Defendant said something to the effect that so this is the guy, and Mary Ann said, "No, this is Marty."
He did not see a knife in defendant's hand immediately; he saw it only after defendant had hit Mary Ann several times. When he realized what was happening he tried to reach over and grab the knife. There were sample boxes in the middle of the front seat but he was able to reach over and take the knife from the defendant. Defendant had the knife in his right hand and tried to strike the witness as witness reached for it. Witness was hit with the knife on the right side of the chest. He was able to pull the knife from the defendant's grasp by prying open his fingers. Witness then opened the car door and threw the knife across the road. Defendant struck Mary Ann at least three or four times.
After witness got rid of the knife he started to walk around the car, and defendant started to walk away very fast. A young man came up and helped lift Mary Ann into his car, and then drove her to the hospital.
Testimony of Edward Cooper, for the State
He is a soldier in the United States Army and lives at 1728 Greenwood Avenue in a rear corner apartment on the second floor. He returned home early in the morning of June 10, 1965, and was attracted to his window by the sound of a car door slamming outside. Looking out of his window he saw two people sitting in a car and also saw defendant creeping toward the car. Defendant came around the corner of the building, walked up to the car, jerked the door open, yelled something about his wife and lunged into the car. There was a scuffle in the car and then a man got out of the driver's side of the car and threw something across the street into the field. Defendant then got out of the passenger side of the car "dragging the woman and dropped her." As the woman lay on the ground, defendant walked away. After O'Donnell threw the object, "he said to call the police."
He did not see a knife nor did he ever see defendant strike a blow.
Stipulation of Testimony of Dr. E. Tapia
The parties stipulated that Dr. E. Tapia is a pathologist employed by the Coroner of Cook County and that if he were called as a witness he would testify that he conducted an internal and external examination on the body of Mary Ann Ross and that he would further testify ...