Appeal from the Circuit Court of Cook County; the Hon.
REGINALD J. HOLZER, Judge, presiding. Affirmed.
MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
JUDGMENT: After waiving his right to a jury trial the defendant was convicted of the lesser included offense of involuntary manslaughter and sentenced to serve a term of not less than nine nor more than ten years in the State penitentiary. *fn1
1) The defendant was not proved guilty beyond reasonable doubt;
2) The trial court erred in admitting into evidence Exhibit No. 1, the Post Mortem Examination Report of the Coroner (Protocol).
EVIDENCE. Testimony of State's Witnesses.
The State called as its first witness Bonnie Byres, the mother of the deceased. She testified that she had known the defendant for approximately two years, and that she and her two children Carrie, age two, and Steven (the deceased), age three and one-half had been living with the defendant since June of 1966. She testified that on November 28, 1966, the defendant had spanked her son; that she had not seen the act, but had heard the child cry out. She stated that the defendant had spanked the child on other occasions but had never hurt him and generally treated him well. She testified that the last time she saw her son alive was at about 5:30 p.m. on the 28th of November; that his face was bruised, particularly one eye, and his forehead. She contradicted this statement in her later testimony in that she subsequently testified that upon examining her son at the morgue on November 29, she found that his eye and forehead were bruised, but that she didn't believe those marks were there when she left home. However, on cross-examination she clarified her position and stated:
"When I last saw Steven about 5:30 p.m., November 28th, he had a bruise on his forehead, and I believe his eye was a little bruised. I don't know, it just didn't appear to me, after I had seen him, that it was that bad. But I suppose maybe it was."
She did not testify that she saw any of the bruises on the rest of the child's body.
On cross-examination by the attorney for defendant, Miss Byres testified that on November 25, 1966, her son Steven had been playing under a bed which she described as "quite heavy," and in tampering with it caused it to collapse on his stomach. However, at no time during her direct testimony did she mention the incident. She stated that after the falling of the bed she observed that the deceased "didn't care too much for food" and ate very little. When questioned specifically by the court she stated that in the interim between the incident and her son's death all that he would eat was half a piece of toast, some beans and some water. She also noticed that he was unable to walk properly and started limping; that in fact, that evening when they were moving into a new apartment she had to carry the child as he was unable to keep up. It is worthy of note that at no time immediately after the child's death did either the witness or the defendant mention to the police or anyone else the incident of the falling bed, despite the fact that they were both questioned by the police as to the physical condition of the deceased. In fact, Miss Byres testified that it was not until she was actually on her way to the Grand Jury that she first mentioned the incident to Officer Kelly.
James C. Kelly, a police officer assigned to the Homicide Division of the Chicago Police Department, was instructed to conduct an investigation to ascertain the exact cause of death of the deceased, whom he observed in the Emergency Room of the American Hospital at 8:45 a.m., on November 29, 1966, approximately 15 minutes after he had been pronounced dead. He testified that he noticed numerous bruises covering approximately 80 percent of the deceased's body; in all, he counted 78 bruises of varying sizes and coloration. During cross-examination he described the condition of the body as follows:
The right eye had slight discoloration around the front and the bruise was approximately an inch in diameter. This bruise was above the right eye on the eyelid. There was a slight laceration. The coloration of the bruises over the eye was a brownish red. There was a discoloration of what appeared to be a bruise around the left eye also. There was no laceration there. The bruise was approximately the same size about an inch in diameter. Both of these bruises were above and on the outside of the eye towards the temple area. I believe there was a slight bruise on the bridge of the nose also. I can't recall whether there was any laceration there. The bruise on the nose was very small, approximately, I'd say at most, a quarter inch.
I stood over the body and counted the bruises for approximately ten minutes. There were four or five bruises in the abdominal region. There were two that appeared to be right in the center of the more pronounced bruises. There were other bruises off on the side. But there were no lacerations. The major bruise would possibly be about two inches. The major bruise was the darkest in color. There were two major bruises but the more predominant one appeared to be about two inches in diameter. The other major bruise was slightly smaller, possibly an inch, an inch and a half. The other bruises, I'd say, were about the size of a quarter. The major bruises were off to the right side. There were numerous bruises on the legs and thighs. They were all approximately of the the coin variety. You would say, dimes to quarters to pennies. They were all in that category. Some were dark, others were very dark various shades of bruises.
Q. Pardon me. I don't think I asked you before. What was the coloration of the bruises on the abdomen?
A. They were very light; of a reddish nature; light ...