Appeal from the Circuit Court of Cook County; the Hon. JOHN C.
FITZGERALD, Judge, presiding. Judgment affirmed.
MR. JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT.
Defendant was charged with murder, tried by the court without a jury and was found guilty of voluntary manslaughter. The trial court sentenced him to the penitentiary for three to eight years. Defendant seeks to reverse his conviction based upon the contention that there was insufficient evidence to support his conviction for voluntary manslaughter. He argues that the evidence could only result in one of two conclusions: either he was guilty of murder or he acted in self-defense to commit a justifiable homicide. The State contends in the alternative that there was ample evidence of provocation or that the defendant acted unreasonably in utilizing his right to self-defense.
The Criminal Code defines the crime of voluntary manslaughter as follows:
"(a) A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:
"(1) The individual killed, or
"(2) Another whom the offender endeavors to kill, but he negligently or accidently causes the death of the individual killed.
"Serious provocation is conduct sufficient to excite an intense passion in a reasonable person.
"(b) A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but his belief is unreasonable." (Ill Rev Stats, c 38, § 9-2.)
With this statutory context in mind, we will analyze the evidence in the instant case.
The State called Martha Scott, who had been married to defendant for some 20 years. She stated that as of July 16, 1966, she had been legally separated from the defendant for a year and one-half and that she and her children had been living with Olden Oatis since September of 1965. On July 16, 1966, Oatis picked up Mrs. Scott at 3:30 p.m., from her job at Wesley Memorial Hospital. He drove to the area of 63rd and Eggleston streets where Oatis parked his car about three car lengths from 63rd and on Eggleston. The witness saw defendant standing on the corner of 63rd and Eggleston and was calling to their son Kevin Scott. She stated that Kevin was on Eggleston and she also called to him from Oatis' car. She then related that her husband looked in the direction where Oatis and she were sitting in the car; that the defendant reached into his pocket and opened a knife, and that defendant walked towards the car. Oatis then pulled a knife and got out of the car. The witness was not sure whether Oatis had opened his knife. She then left the car and started towards 63rd Street. She observed Oatis and the defendant come together and saw the defendant strike Oatis with his knife upon the upper portion of Oatis' body. Oatis fell to the ground and the defendant was over his body. The witness said that the defendant administered some jabbing blows with his right hand to Oatis while on the ground.
On cross-examination, the witness said that on July 15, 1966, she had told a friend of the defendant that if her husband didn't send some money for her children that she would have him arrested. She also stated that her husband saw two of her children somewhat infrequently, with the children going out to see their father. She never let the defendant into her apartment according to her testimony.
Gregory Scott, the nine-year-old son of the defendant was called by the State. After this child's competence was established, he was questioned concerning the date of the homicide. Gregory said that he saw his father at 10:00 a.m. that morning. Defendant asked for Mrs. Scott and Gregory told him she was at work. Gregory then found his little brother Kevin at the defendant's request. Defendant gave both of them a dollar and said he was going to take them some place. Gregory related that he and his brother went to their apartment, changed clothes and went back down to the street. They could not find their father. The boys then changed clothes and went to play. Gregory next met his father at 2:30 p.m., when his father asked him to steal the apartment keys because that night he was going to kill his mother and Oatis. Gregory then left and returned to his apartment. Defense counsel elicited from Gregory that his father visited him about every two weeks. He stated that defendant gave him some money on these occasions. According to Gregory, two of his father's visits were in the apartment of Mrs. Scott, where Oatis also lived. Gregory also stated that his father was living in a hotel about a block from this apartment.
The State next called Kevin Scott, the seven-year-old son of the defendant. Following the establishment of his competency to testify, he testified as to the events of July 16, 1966. He corroborated his brother's story of their encounter with the defendant in the morning. He then testified to his observation of the fight between Oatis and the defendant. The witness said that he saw his father at the cleaners; that the witness was walking with a friend toward that corner; and that his father and Oatis both called to him, the latter from a car where he saw his mother. Kevin said his father asked him who he was talking to. His father then walked toward the car. The boy witnessed the stabbing and saw both men draw their knives. He said his father was the first to pull out a knife. While standing near the scene, he saw his father cut Oatis, then cut him again after Oatis had fallen to the ground. According to Kevin, his father then ran and was apprehended.
The witness was not sure as to when he first saw his father on the day in question. Kevin also testified as to the visits made by his father on previous occasions and that his father sometimes gave him money. According to this witness, Oatis got out of his car and then pulled a knife which he opened. It was ...