Appeal from the Circuit Court of Cook County; the Hon. WILLIAM
S. WHITE, Judge, presiding. Affirmed in part, reversed in part.
MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
Rehearing denied April 2, 1969.
The defendant was charged in the first of a two-count indictment with having intentionally and knowingly shot and killed James McGee with a gun, without lawful justification; and in the second count with intentionally and knowingly having shot and killed James McGee with a gun, knowing that such shooting with a gun created a strong probability of death or great bodily harm to said James McGee, without lawful justification. In a bench trial the defendant was found guilty on both counts and sentenced to a term of not less than 14 nor more than 15 years in the penitentiary on each count, the sentences to run concurrently.
In this court the defendant contends:
1) The trial court improperly admitted into evidence a photograph showing the nature and extent of the fatal wound of the deceased;
2) The trial court erred in allowing the prosecution to make arguments concerning the photograph and in considering the photograph and the argument in reaching a decision; and
3) Defendant was not proved guilty beyond a reasonable doubt.
The following statute is involved:
Ill Rev Stats 1963, c 38, § 9-1. Murder. (a) A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:
(1) He either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; or
(2) He knows that such acts create a strong probability of death or great bodily harm to that individual or another; or
(3) He is attempting or committing a forcible felony other than voluntary manslaughter.
At the beginning of the trial a stipulation was entered into between the State and the defendant through their respective attorneys that if Dr. J.W. Henry, a pathologist, were to testify it would be to the effect that on April 19, 1965, he performed a post mortem examination upon the body of James A. McGee (deceased), properly identified, and determined the cause of death to be from a gunshot wound to the brain.
In his brief the defendant states that from the very outset of the trial there was no issue as to the cause of the death of the deceased; he was killed by a ...