APPEAL from the Circuit Court of Cook County; the Hon. HARRY
S. STARK, Judge, presiding.
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:
The defendant, Russell Porterfield, was indicted on two counts of attempted murder and on two counts of aggravated battery. After a trial by jury, he was found guilty on the two counts of aggravated battery, and he was sentenced to serve an 8 to 10 year term in the Illinois State Penitentiary on each count, the terms to run concurrently.
On appeal, the defendant contends (1) that he was deprived of a fair trial because of the prosecutor's misconduct throughout the trial, (2) that the jury was inadequately instructed on his theory of self-defense, (3) that he was not proved guilty beyond a reasonable doubt, and (4) that he was deprived of a trial by a fair and impartial jury because the prosecution exercised peremptory challenges without statutory authorization. This final contention, however, was waived during oral argument, and consequently, we consider only the first three contentions.
We first summarize the evidence presented at trial. Martha Murray, one of the victims, testified that on December 30, 1966, she and her two children resided in an apartment located at 3108 West 139th Street in Robbins, Illinois. She had formerly lived with the defendant, who was the father of one of her children. When she entered her apartment with her sister, Leola McGhee, on December 30, 1966, at about 9:00 P.M. she saw the defendant standing in her living room door. She asked what he was doing in her apartment, and he replied, "I come to kill you, mother-fucker." The defendant then shot her three times in the head, struck her on the head with the gun barrel, and broke her leg in three places with an antique lamp. Leon Mayo, her landlord then rushed into the apartment. He asked what the defendant was doing, and the defendant shot him twice. As a result of her injuries, she was hospitalized for about two weeks. Two of the three bullets were removed from her head, but the third could not be removed and was still lodged there.
Leola McGhee testified that on December 30, 1966, she had been picked up downtown by her sister, Martha Murray. When they arrived at Martha's apartment, they found the defendant inside. Martha asked what the defendant was doing there. He replied using the same curse word testified to by Martha and then shot Martha. She, Leola McGhee, did not see the gun, but she did see the blood on Martha's face after the shooting. She screamed, stood for a moment, and then ran next door to call the police. No one was at home next door, and when she returned to the apartment building, she found Martha standing on the stairs outsider the apartment. On cross-examination she testified that on December 30, 1966, she had just arrived from Alabama and that Leon Mayo and her cousin, in addition to Martha, had picked her up at the train station. Mayo drove them first to her cousin's home and then to Martha's apartment. She and Martha entered the apartment, and she saw the defendant shoot Martha. After the second shot had been fired, Mayo returned, and the defendant shot him also.
Leon Mayo, the other victim, testified that he met Martha Murray in December of 1965 when he rented an apartment to her and that he met the defendant in June or July of 1966, when the defendant moved in with Martha Murray. The defendant lived in the apartment until December 25, 1966. On December 30, 1966, he, Mayo, went with Martha Murray to pick up her sister at about the 4100 block of Indiana Avenue in Chicago. When they returned at about 9:15 P.M., they entered the building and he saw the defendant in the hallway of Martha's apartment. He then went into his aunt's apartment which was across the hall from Martha's. When he heard shots, he ran into the hall. He then heard rumbling and falling and saw Martha Murray with her face covered with blood. He asked what was wrong, and she replied, "Porterfield shot me." He then saw the defendant with a gun in his hand and hollered, "Man, what is wrong with you?" The defendant then shot him twice. He was hospitalized for four days on account of his injuries. On cross-examination he testified that he did not have a weapon with him when he was shot, but that he did get an unloaded .22 caliber rifle after he had been wounded.
The defendant testified on his own behalf and stated that he had known Martha Murray since 1959, that the two of them had practically lived together since that time, and that he was the father of one of her children. He moved in with Martha in July of 1966 and lived continuously with her until December 30, 1966. On that date he arrived at the apartment at about 7:30 P.M., and he was admitted by Leon Mayo's son since he did not have his own key with him. He watched television for a while and then fell asleep. He woke up when he heard a car trunk slam. He looked out and saw Martha, Leola McGhee, Mayo and Mayo's wife. He had a few words with Mayo when they entered the apartment and Mayo left. Martha then asked him to go out and get a pint, and he did this. When he returned, Martha gave him a drink. He then dozed again until Martha woke him up and asked him to get some gum. He went out to get the gum, but he stopped to talk with the store owner for about 20 minutes. When he returned an argument ensued between him and Martha. They began to scuffle, Martha attacked him with a knife, and Leola struck him with a piece of iron. Martha screamed and Mayo entered with a .22 caliber rifle.
A. When he entered the door I reach in my coat pocket and pulled this pistol and when I pulled the pistol Miss Murray, she dived on the pistol and I never did free the pistol from Miss Murray.
Q. What happened after that?
A. After I slammed Miss Murray on the bed and when the shots was made I couldn't guarantee where the shots came from because I never did free the gun.
A. I never get the gun free from Miss Murray and Mr. Mayo, I shot him and he ran, he went upstairs * * *."
On cross-examination he explained that he did not have the gun with him when he arrived at the apartment at 7:30 P.M., but that he had picked up the gun when he went to the store where he worked to purchase the gum. He took the gun to prevent a possible robbery of the store and then just took the gun home. He further said that he did not shoot at Mayo. He heard shots, but "it went off through the kitchen." When asked how Martha was struck in the head with bullets he answered, "Well, it could have been from some gun, some of the rest of them could have had a gun. I ...