Appeal from the Circuit Court of Cook County; the Hon. JOHN C.
FITZGERALD, Judge, presiding. Affirmed.
MR. PRESIDING JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
WILLIE IRVIN, defendant, was convicted of the murder of Lena Shelly and an aggravated assault on James T. Shelly, and was sentenced to the penitentiary for not less than fifteen nor more than twenty-five years for murder, and not less than five nor more than ten years for aggravated battery. This appeal is taken from the judgment of the court.
The State's first witness was James W. Harris, who testified that he lived at 3950 Indiana Avenue; that on July 26, 1965, at about 2:00 a.m., he was sitting on the front porch with Lena Shelly (deceased); she was sitting on the banister leading to the basement. He heard shots down the street and saw the defendant, Willie Irvin, and his wife each fire a shot, after which he saw the wife hand the gun to the defendant, who put it in his right-hand pocket with a handkerchief. About 15 or 20 minutes later the defendant and his wife came to the porch where the witness was talking with the deceased and the deceased's father who had just joined them. The defendant pushed the deceased with his finger and said, "Don't you like it?" She replied, "Not particularly," and he said, "I'll blow your brains out." He then shot her in the head. The deceased had not moved from the banister before the shooting, nor had she touched the defendant. After she was shot she "made a funny little noise and fell." The witness then ran upstairs, looked out the window and saw the deceased's father hitting the defendant with a shiny object which the witness identified as People's Exhibit 2, a metal vacuum cleaner pipe. He stated that he then heard a couple of shots fired, but did not see who fired them. The witness testified that he had once been sentenced to the penitentiary for armed robbery.
J.T. Shelly testified for the State that he was the father of the deceased; that on July 26, 1965, he arrived home from work about 3:00 a.m., and saw the defendant and his wife standing near their truck which was parked up the street from the building at 3950 Indiana Avenue. He sat on the porch talking with Harris and his daughter; at this time the defendant came up to the porch with his wife who was holding on to his side; he pulled loose from her, reached over and hit the deceased and asked her if she liked it. She said, "not particularly, because she didn't feel good." At that time the gun went off, and the defendant said, "Now, take that." Shelly then went into the house, got the metal pipe and met the defendant in the hallway. He hit the defendant with the tubing and the defendant said he would kill him if he hit him again. He dropped the tube and the defendant fired two shots at him, hitting him in the back. Shelly saw the weapon after the defendant shot him. Shelly and his wife then went to see what they could do for their daughter, but she was dead, having been shot through the left side of her head.
Jessie Hewing testified that he was visiting with two girls at 3950 Indiana Avenue on July 26, 1965; that he looked out the window and saw the defendant and a woman walking down the street; that he heard a shot and saw the deceased fall off the banister. He then saw Shelly come out with some object in his hand and hit the defendant; another shot was fired, and he heard Shelly say to the defendant that he had shot his daughter. He saw the two men tussling together, but when he got there the defendant had gone. On cross-examination Hewing stated that he had testified at the Coroner's inquest where a court reporter was present, and that he was examined as follows:
"Q. Did he have a gun in his hand at that time?
"A. No. I couldn't see a gun in his hand. Evidently, he must have put it in his pocket or something."
He was then asked if he gave that answer and he said, "I don't remember giving that statement." He said when the man was walking towards him and towards the building he couldn't see the gun; that he didn't see it anymore until after the girl fell. No record of testimony before the Coroner was introduced, and the impeachment falls flat.
Police Officer Robert O'Donnell testified for the State that on the day and time in question he went to the premises and saw the deceased lying on the steps; she had been shot on the left side of the head and was dead. He talked to Shelly who had a bullet in his back. He stated that he picked up a vacuum cleaning tube from the sidewalk which he had brought to court with him.
Richard Degitis testified for the State that he was a detective for the Chicago Police Department assigned to the homicide squad; that he investigated the shooting in question, and had a conversation the next day with Alline Smith, sister of the defendant.
It was then stipulated that if the Coroner's physician were called to testify he would state that on July 26, 1965, he examined the body of Lena Shelly (deceased); that he observed a gunshot wound as follows: Entry in the left temporal area directed slightly obliquely upward and to the right passing through left temporal lobe and the mid aspect of the right temporal lobe, where the metallic pellet was recovered. In the opinion of the Coroner's physician, death was caused by a gunshot wound of the brain. The witness also testified that the bullets fired at both the deceased and Shelly were submitted to the Coroner's office, and in the opinion of the examiner, the bullets were fired from the weapon in evidence.
Willie Irvin, the defendant, testified that he had known J.T. Shelly six or seven years, and also knew his daughter, the deceased; that on July 26, 1965, he was in front of 3950 Indiana Avenue. His wife, his sister, Alline Smith, and he went there together in his sister's car, after having been to a place called Turner's in the 4000 block on Indiana, and to a Walgreen's drugstore at 35th and South Park. He played the drums and guitar with a band at Turner's. He stated that he had nothing alcoholic to drink that evening. When they arrived at 3950 Indiana, his sister went into her first-floor apartment; the defendant unlocked the trunk of his car and took out the gun which was in evidence. He said he did not want to leave it in the trunk overnight; he denied that the gun was fired at the truck location, either by him or his wife. He testified that he saw Lena Shelly (deceased), her father, and James Harris on the porch; that the deceased was on the railing to the north of the concrete steps. He stated that she asked him to lend her some money; he said he did not have any, and the deceased then hit his pocket; he told her not to do that, that there was a gun in there. She put her hand in his pocket, then pulled it out, and the gun came out with it; she grabbed him with her other hand and the gun went off. He testified that the deceased was falling and dropped the gun, and he picked her up and also picked up the gun and put it in his pocket. He stated that Shelly, the deceased's father, then attacked him with a pipe, and the defendant grabbed him, wrestling with him in the hall, then out the door onto the sidewalk. He testified that Shelly continued hitting him with the pipe; that he told him not to hit him again, and pulled the gun out of his pocket, firing it into the ground. The defendant stated that Shelly then swung at him and the gun went off again; the defendant ran north, together with his wife, to his cousin's house where they stayed overnight. The next day he went to the police station with the gun and reported what had happened the night before. He told them he had found the gun, because he did not want to admit owning it since it was not registered.
On cross-examination defendant stated that when the deceased put her hand in his pocket he "probably gave her the lift out, because I pulled up like this at her wrist, here." He denied that he was holding the gun at the time it was fired. The State's Attorney then asked him about the statement he made to the police when he gave himself up. He was asked:
"Q. Do you remember being asked this question and making this answer: `Q. What happened to the gun after Lena Shelly got shot? A. She pulled the gun out and I grabbed it. And I don't know how it ...