Appeal from the Circuit Court of Macon County; the Hon. ALBERT
G. WEBBER, III, Judge, presiding. Affirmed.
Rehearing denied June 1, 1970.
Defendant was convicted of murder upon the verdict of a jury and sentenced to a term of from 40 to 60 years. He appeals.
Issues presented upon appeal include the sufficiency of Count II of the indictment; the alleged error in admitting into evidence a statement of the defendant to police at the scene without Miranda warnings being given; the alleged error in instructing the jury as to the offense of murder and in refusing certain defendant's instructions, and whether prejudice to a fair trial resulted from the State's argument to the jury, and certain events occurring during the trial which will be discussed more fully hereinafter.
Defendant was the husband of the victim. At about 9:00 a.m. on March 10, 1968, the deceased wife was found seated in a chair dead from a shotgun wound in the chest. The shotgun was lying on the floor some few feet from the body. The defendant was discovered seated in the basement with his clothing saturated with blood, and his arms and legs slashed. He appeared to be quite weak, and was shortly thereafter taken to a hospital where he was treated for shock and given a blood transfusion.
The room in which the body of the wife was found was in great disarray with blood scattered about, razor blades were scattered about and pictures of the wife were cut or torn. The chandelier was pulled from the ceiling and a piece of wire was hanging from it, which was said to suggest that there was an attempt at suicide by hanging. Blood was found in the kitchen and in the bathroom. A three-month-old baby of the victim was found in a crib or cot nearby.
The shotgun was owned by the defendant and he testified that it was kept in a gun case in a box in the closet. Investigating officers testified to finding the gun case lying in or across a box resting on a chair in the closet. Defendant testified that his wife was never known to handle or touch the gun.
Neighbors who resided immediately above the quarters of defendant testified that they heard a violent and prolonged quarrel commencing about 1:30 a.m. on March 10th, and continuing until at least 2:00 a.m., when they went to sleep.
The essential factors to be considered primarily arise from the testimony of the defendant. They are that his wife returned home at about 1:30 a.m., having been gone since 1:00 p.m. the previous afternoon. Defendant testifies that he had been drinking. He testified that she came in, changed to her nightgown and came out with the baby. By processes not very clearly brought out, they became involved in a violent quarrel. It is corroborated that the wife seemed to take some pleasure in applying humiliating nicknames to her husband. According to his testimony, she further humiliated him in discussing the paternity of the three-month-old baby. It appears that the victim had an older child of some five or six years whose father was a man named Worley; that she had Worley's initials and a heart in tatoo on her thumb; and that she, with defendant's apparent knowledge, spent some six weeks in the west with Worley and returned about eight months before the baby was born.
Defendant testified that he recalls a prolonged quarrel, but that his recollection of what actually transpired fails. He testified that he next recalls discovering himself, at about 4:00 a.m., seated in a chair with the shotgun on the floor and his wife seated in a chair apparently dead; that he walked four blocks to his sister's to get help but could rouse no one, and then returned and slashed his wrists with a razor. Thereafter, he went to the basement and remained until discovered at about 9:00 a.m. in the morning.
Defendant challenges the sufficiency of Count II of the indictment as a charge of murder. The language of the Count is:
". . . committed the offense of murder in violation of Chapter 38, § 9-1, Ill Rev Stats, 1967, in that he killed Deanna Lowe without lawful justification by shooting her with a gun, knowing that such action created a strong probability of death or great bodily harm to Deanna Lowe. . . ."
It is recognized by counsel that such is a charge in the language of chapter 38, § 9-1(a)(2), Ill Rev Stats 1967. It is argued however that the conduct proscribed is so uncertain that the section is unconstitutional and that an indictment through such section:
". . . does not allege all the substantial elements of murder because the intention to do the act that results in death is a necessary element which is incorporated in other sections of the Code and which must be alleged in the indictment."
In The People v. Davis, 35 Ill.2d 55, 219 N.E.2d 468, the court considered an instruction stated in the language of § 9-1(a)(2) and in substantially the identical language of this indictment. There the argument was made that the jury:
". . . should have been instructed that they must find that the defendant had the intention to engage in conduct the result of which. . . ." (Emphasis supplied.),
and that the instruction and statute was violative of due process. The court said:
"In our opinion, neither the statute nor the instructions violated the constitutional rights of the defendant,"
and further noted that intent may be implied from the character of the act. It may be pointed out that the comment of the Drafting Committee of the Code concerning the section at issue said that the word "knows" as used in ...