APPEAL from the Circuit Court of Cook County; the Hon. JAMES
J. MEJDA, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
A jury found the defendant guilty of murder. He was sentenced to a term of twenty to thirty years. On appeal defendant contends: (1) the prosecution failed to prove defendant's guilt beyond a reasonable doubt; (2) the court erred in failing to give instructions on voluntary and involuntary manslaughter; (3) the court erred in not granting a mistrial; and (4) the sentence was excessive.
Earl Fernell testified for the State that he was the husband of Catherine Fernell (hereinafter "deceased"). For about six or seven years she had lived with defendant and was living with defendant at the time of her death.
William R. Browne testified for the State that he lived in apartment 307 of the Mansfield Hotel. Deceased lived with defendant in apartment 309. On the night of decedent's death he heard five shots: two, an interval, two more, a shorter interval, and then one. About six or seven minutes later he saw the police in the hall outside of the apartments.
Edmund Woodard called by the State, testified that he lived in apartment 305. On the night in question he heard two shots then three more.
Officer Lynch testified for the State that upon reaching the third floor of the Mansfield Hotel he saw defendant in the hall. Defendant went into his room whereupon the witness and his fellow officers knocked on the door, ordered defendant out of the room and placed him under arrest. The witness then entered the apartment where he discovered a towel-covered body of a woman lying alongside the bed. Although the witness remained in the apartment approximately ten minutes he recalled no signs of a struggle.
Dr. William Sterner, a pathologist, was called by the State. He conducted an external and internal examination of the body of the deceased. The examination revealed three anterior wounds of entry and two pasterior wounds of exit. The entry wounds were made by a gun held within three feet of the body. The path of the bullets through the body was slightly downward from front to back. In his opinion the gun was probably held higher than the victim who was 5 feet 2 inches in height. Any of the wounds could have been fatal.
Officer Steward testified for the State that after ordering defendant into the hall the witness entered the apartment whereupon he found the body of a female lying on the floor near the bed. Partially under the right hand of the victim was a .45 automatic pistol. The room was untidy but bore no evidence of a struggle. His examination of defendant revealed a laceration on defendant's right thumb.
Detective Stuparitz testified for the State that he found at the right arm of the deceased a .45 pistol with the slide back and lying nearby, a broken handle of a gun. An examination of that handle revealed it to be free of blood. Pellets were found in various places throughout the room, one of which was under a rug beneath the bed, another under the body. The bullet found under the bed apparently passed through the bed clothing and mattress. Speckles of blood were found on the bed clothing; blood stains were found under the body. Three shirts were found to have blood on them: one, freshly laundered, was found on the bed; a second, also freshly laundered was found in the washroom; and the third was found hanging out of a dresser drawer. Blood was also found in the toilet bowl and sink and on the clothing defendant was wearing. Defendant was also discovered to have a cut on the side of his right thumb.
Detective Renfroe, called by the State, testified that pellets and casings from bullets were found in various areas of the apartment. A bullet hole was found in the couch. The room was in a general state of disarray but no furniture was upset. The only knives found in the apartment were found with other eating utensils. Defendant was found to have a laceration on the side of his right thumb. Renfroe also testified each time a .45 pistol is fired the trigger must be pulled.
John Roberts testified on his own behalf. He had lived with the deceased for approximately the last eight of his fifty-seven years. On the night in question he came home from work, ate dinner and talked with deceased. She bathed and remained nude. One more of a series of recurring arguments broke out over their financial status. Deceased picked up a steak knife and slashed at defendant cutting his right hand. He wrestled the knife away from her, threw it aside and went into the washroom to try to stop the bleeding. Deceased then appeared with a gun. Defendant rushed her and the gun went off twice. As they struggled for the gun deceased fell against the bed and the gun went off "a bunch of times" whereupon deceased fell to the floor. Defendant, while in shock, went to the washroom, ran some water on his bleeding hand, picked up the furniture knocked over during the struggle, covered deceased with a towel and started to get dressed. He did not wipe the gun with a shirt. The police later took him to the hospital to have his hand sutured.
Detective Renfroe was called in rebuttal by the State. He stated that evidence technicians at the scene dusted the weapon for fingerprints while he looked on. No fingerprints or foreign matter were visible on the weapon. He knew of no oily substance on the pink shirt.
• 1, 2 Defendant first contends that the prosecution failed to prove him guilty beyond a reasonable doubt. His position is untenable in view of the evidence brought out by the State. The prosecution showed the angle of entry was from above the wounds in the victim's chest. Each time a .45 pistol is fired the trigger must be pulled. Any one of the three wounds inflicted on the deceased was sufficient to kill her. Three police officers testified that there was no sign of a struggle at the crime scene. Neither fingerprints nor blood were found on the weapon although blood was found on defendant and throughout the apartment. In an attempt to support his claim of innocence defendant testified in his own behalf as to the events leading to the victim's death. It is apparent that the jury did not believe defendant's version. The credibility of a witness is a matter to be determined by the jury and the jury's determination of defendant's guilt will be disturbed only when the evidence is so unsatisfactory as to leave a reasonable doubt of defendant's guilt. (People v. Hairston (1970), 46 Ill.2d 348, 365-366.) In the present case the evidence is not of such an unsatisfactory character as to raise a reasonable doubt of defendant's guilt.
Defendant's next contention revolves around the trial court's refusal to give certain instructions to the jury. Basing his argument on the purported existence of evidence which raised the issue of manslaughter, voluntary or involuntary, he contends that the lower court erred in refusing defense instructions on involuntary ...