Appeal from the Circuit Court of Montgomery County; the Hon.
FRANKLIN DOVE, Judge, presiding. Judgment affirmed.
Rehearing denied January 2, 1970.
Defendant, John E. Gordon, was tried by jury in the Circuit Court of Montgomery County and convicted of the offense of Involuntary Manslaughter (c 38, § 9-3, Ill Rev Stats 1967). The court denied motions for a new trial and in arrest of judgment, denied defendant's petition for probation, heard evidence in aggravation and mitigation, and sentenced defendant to the Illinois State Penitentiary for not less than 2, nor more than 7 years.
The indictment is in 9 counts. There are 8 counts charging Murder (c 38, § 9-1, Ill Rev Stats 1967), 5 allege an intent to kill or do great bodily harm to Allan Dean Gordon, and 3 allege an intent to kill or do great bodily harm to Deanna Gordon. The ninth count, charging Involuntary Manslaughter, accuses defendant of reckless acts likely to cause death or great bodily harm to Deanna Gordon or Allan Dean Gordon. An order of Nolle Prosequi was entered as to two counts of Murder, and the case was submitted to the jury on the remaining six counts of Murder and one count charging Involuntary Manslaughter. The jury found the defendant not guilty of Murder.
The victim of the homicide was defendant's two-year-old son, Allan Dean Gordon. Dr. J. Robert Rebillot testified that the boy died of a gunshot wound to the right portion of his skull. He saw him in the emergency room St. Francis Hospital in Litchfield. The defendant was holding the boy, was in a state of hysteria, and would not release the child. Litchfield police officers forcibly took the child from defendant's arms, Dr. Rebillot administered thorazine, and defendant was then shackled to a wheel chair by a strap around his waist, and shackles on his wrists and ankles.
Ernest Felkel, Chief of Police in Litchfield, testified that while he was in the emergency room, after defendant was shackled, Deanna Gordon came over to where defendant was sitting and defendant said "Get the hell away from me and leave me alone." She replied "It wasn't your fault." The witness identified photographs of the interior of defendant's home, and described the floor plan, furnishings and the bedroom in which the shooting occurred. He stated there was a 16-gauge shotgun lying in a clothes closet with its muzzle pointing north, and the stock pointed toward the bed.
Robert Hough, a funeral director in Raymond, testified that in response to a call he went to the Walsh farm. He saw defendant in an automobile holding his child. Defendant would not release the boy but agreed to ride in the ambulance, holding the child, and was driven to the hospital in the ambulance.
Harry Gerard, Mr. Hough's helper, was with him at the time. Both he and Hough testified that defendant struck Hough with his fist prior to agreeing to go to the hospital.
Felkel, Hough and Gerard all expressed the opinion that defendant was intoxicated.
Jerome S. Keller, Sheriff of Montgomery County, testified that he saw defendant at the hospital, went to his home, later saw defendant at the county jail, advised him as to his rights in accordance with "Miranda," defendant waived his right to remain silent and told him he had gone to work the day before the occurrence, the truck he was to drive broke down, he worked on it a portion of the day, started drinking and returned home at 4:00 a.m. on January 18, 1968, the date of the shooting, in an intoxicated condition. He accused his wife, Deanna, of having an affair, became angry, broke a lamp and end table, left home at 5:00 a.m. and returned at noon. He heated some soup and wieners, woke Allan Dean and brought him to the table in the kitchen. He did not remember getting the gun down, remembered Deanna's asking him to "put the gun up for the children's sake," the gun went off and he cannot explain why. He had threatened his wife on past occasions but did not remember threatening her that day. The shell in the magazine of the shotgun had been fired.
Upon motion of the State's Attorney, and over defendant's objection, the court called Deanna Gordon as the court's witness. In response to the court's interrogation, she testified defendant came home on the morning in question at 4:00 a.m., left, and returned home at noon. When he came home at noon she was asleep on the couch. He asked if the children had eaten, Allan woke up, defendant brought him to the table, Brent, their younger child, awoke and she brought him to the table, defendant prepared lunch for himself and the children, defendant went into the bedroom, she started into the bedroom and as she pulled back the curtain between the kitchen and the bedroom, the gun went off. Some of the pellets struck her hand. Defendant was picking Allan up, they got in their car, she driving, defendant holding Allan in the back seat. She stopped at the Walsh farm and asked them to call an ambulance. At the hospital she was given a shot, defendant was shackled to a wheel chair, he asked how she felt, and "I told him I didn't blame him for what happened. I knew it was an accident."
Upon cross-examination by the State's Attorney, she testified her husband left home at 5:00 a.m. on January 17, 1968, to go to work and returned highly intoxicated at 4:00 a.m. the next morning. He told her people had been talking about her going out with somebody else. Upon being asked by the State's Attorney if this was true, she replied "Well, yes." He did not threaten her. He left and returned at noon. She could not say what attracted her to the bedroom, but as she pulled back the curtain to enter, the gun went off. Defendant was lying on the bed with the gun across his body, the barrel toward the door she entered. Allan was at the opposite end of the bed. Upon being shown the statement she had signed she did not recall having said that she had asked defendant to "put up the gun for the children's sake." She did not recall having stated she "heard a clicking noise like the gun being pumped." Defendant had threatened to shoot her on several past occasions, but not on that day.
On cross-examination by defense counsel, she stated she had not taken prior threats seriously, and his demeanor when he said it was "mostly he was just joking." She had not been in fear of his carrying out the threats. He was fond of the children, and particularly devoted to Allan. Defendant had beaten her on past occasions. In recent weeks they "were getting along fine."
Mr. Keller, recalled by The People, testified Mrs. Gordon had, in fact, made the statements about ...