APPEAL from the Circuit Court of Cook County; the Hon. THOMAS
R. McMILLEN, Judge, presiding.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:
Defendant was convicted, after a jury trial, of the offense of murder. Judgment was entered and he was sentenced to seventeen to twenty-five years. On appeal defendant's principal contentions, as set forth in his counsel's brief and in his pro se brief covering additional points and authorities, include: (1) that he did not receive a fair trial because of prejudicial cross-examination and improper rebuttal testimony; (2) that the trial court erred in refusing to delay the trial and compel the attendance of defense witnesses; (3) that the trial court erred in instructing the jury; (4) that he was not adequately or properly informed of his constitutional rights; and (5) that he was not proved guilty beyond a reasonable doubt.
The evidence presented at trial may be summarized. Margaret Szymanski, the wife of Stanley Szymanski (hereinafter "deceased"), went to defendant's home in the early morning hours of January 5, 1967, to persuade her husband to leave defendant's home. Upon her arrival at defendant's home she was told by defendant to "Get away from here." Defendant then picked up a carbine rifle, aimed it at her and threatened to blow her head off. She disarmed defendant and struck him with the butt of the rifle. The blow inflicted by her caused defendant to bleed from the forehead and above the nose. Defendant phoned the police and they arrived at his home shortly thereafter. The police asked Mrs. Szymanski to leave. Her husband remained behind.
Mrs. Szymanski also testified that when she saw deceased in the early morning on January 5th she was unable to form an opinion as to whether or not he was drunk. Occasionally deceased would drink beer. Deceased was employed as a furniture mover and he worked at both Joyce Brothers and Mayflower. On January 4, 1967, he worked for Mayflower until 6:30 P.M.
At approximately 8:45 A.M. on January 5, 1967, Police Officer Paul Stubblefield, in response to a call, went to 8501 South Dorchester Avenue in Chicago. Upon his arrival his attention was first drawn to a small broken window in the front door. He then knocked on the door and defendant answered. Defendant immediately told him, "I shot him because he hit me in the head in my own house." Stubblefield then saw deceased lying on the floor and a shotgun lying on a cot. During this period of time defendant kept talking and only after defendant stated, "I put one shell in that gun and I shot him," was he able to place defendant under arrest and inform him of his constitutional rights.
Stubblefield did not think that anyone could insert his hand through the broken section of the front door window. He did not notice the odor of alcohol on the deceased or defendant. Defendant had a dried cut on his forehead but no other marks.
Detective William Boreczky arrived at defendant's home at about 9:00 A.M. on January 5, 1967. He spoke with Sergeant Connelly as to what transpired prior to his arrival. He was introduced to defendant and he advised defendant of his constitutional rights. However, before he could say more, defendant said to him, "I shot him because he hit me * * * I had to do it, I shot him because he hit me." Boreczky noticed "a coagulated laceration superficial cut" on defendant's forehead.
Approximately one hour later, having accompanied defendant to the police station, Boreczky again informed defendant of his constitutional rights. After having talked with his attorney, defendant still continued to tell him what occurred. Defendant told Boreczky that deceased came to his home on January 4th at about 10:00 P.M.; that they had several drinks together; and that deceased left at 3:30 A.M. on January 5th. Around 8:00 A.M. on January 5th defendant was awakened by a loud pounding at the front door. Defendant went to the door and allowed deceased to enter and they had "about" two drinks together. At this time deceased got up and for no reason struck defendant in the face. Defendant then warned deceased, "Stanley, you may be bigger than me, but if you hit me again, I will kill you." Thereupon defendant alleged that the deceased grabbed him by the throat and that upon breaking away, he went behind the divan where he had a 20 gauge shotgun. Defendant then loaded one shell into the chamber and fired point blank at deceased.
Boreczky also testified that he noticed no blood on the telephone in defendant's home.
Dr. Eugene Tapia, called as a State's witness, testified that he performed an autopsy on deceased. In his opinion a shotgun blast to the face was the cause of deceased's death. He also found that the alcohol in deceased's blood was 215 milligrams. In his opinion deceased was intoxicated.
For the defense, evidence was introduced to establish the character and reputation of the deceased as being "a moocher for a buck" and "pretty rough." There was also testimony that deceased was forty-one years old, standing six feet, two inches tall and weighing about 190 pounds and that defendant was fifty-seven years old, standing five feet nine inches tall and in poor health, suffering from coronary insufficiency, cirrhosis of the liver and high blood pressure, and that as a result of an automobile accident he walked with a limp.
David Hicks, defendant's son, testified for the defense. Around 8:00 or 8:30 A.M. on January 5, 1967, he heard a sound like an air rifle, only a little louder. He went downstairs and saw deceased on the floor. Defendant told him, "He hit me several times and went through my pockets. I am going to call the police." Defendant also told him that deceased broke into the house. David ran upstairs, got dressed and left the house. In his opinion defendant was not drunk on January 5th.
David saw the broken window in the front door but he did not know when it was broken. He heard some bickering before he heard a noise like a rifle but he could not make out what was being said. He did not hear anyone come in the house between 1:30 and 8:30 A.M. on January 5th. Defendant kept a single barrel shotgun, an M-1 rifle with bullets, and a small pistol in the house. The shotgun was loaded at all times. Deceased and defendant were friends most of the time. However, when defendant would not give deceased money, deceased would get mad. Several days before January 5th deceased asked defendant for $125 or $150. Defendant said that he did not have the money.
Dr. Frank Fiortse, testifying for the defense, stated that a person with 215 milligrams of alcohol in his blood could be violent. (This was his opinion grounded upon a hypothetical question based on the evidence which referred to the deceased.)
Defendant testified in his own behalf. On January 4, 1967, at approximately 4:00 P.M., deceased came to his door and was let in. Several minutes later Mrs. Szymanski came over and she and deceased started to fight. He called his attorney who advised him to call the police. The police came over and put Mrs. Szymanski out of the house. Deceased remained with him. He denied that Mrs. Szymanski struck him with his carbine but stated that she kicked him. Shortly thereafter he again called his attorney who asked deceased to leave defendant's home and deceased complied.
On January 5, 1967, at 8:30 A.M., deceased came into his home uninvited. Defendant asked deceased to leave. Deceased refused, started swearing at defendant and demanded money from him. Defendant again pleaded with deceased to leave his home. He went to call the police. Deceased grabbed the phone first and hit him over the back of the neck with it. Deceased continued to beat defendant, hitting him four or five times with his hands. After deceased knocked him down, deceased went through his pocket looking for money. Deceased let defendant get up and then pushed him into a chair. Deceased then walked away and went to the staircase to see if defendant's son had awakened. At this time defendant picked up a shotgun that was standing near the chair and pointed the gun at deceased's shoulder. Deceased returned and sat at the foot of defendant's bed, facing defendant. Deceased threatened to kill defendant with his bare hands, whereupon defendant stated, "Leftie, please [leave] my home, don't try to hit me any more." Deceased lunged at defendant and the gun went off, killing deceased. Defendant believed that deceased ran into the gun and it went off.
Defendant called the police and a priest. When the first police officer arrived he told the officer that deceased broke in, hit him and tried to get money from him. He said, "He [deceased] got shot." Shortly thereafter he signed a written statement at the police station.
Defendant also testified that Mrs. Szymanski was not in his home during the early morning hours of January 5th. She never took a rifle away from him nor did she hit him with a rifle over the eye.
Deceased hit him in the back of the neck, kicked him and hit him a number of times. He never made a statement to Officer Stubblefield that he shot deceased because deceased hit "me in the head in my own house. I put one shell in that gun [pointing to a .20 gauge shotgun] and shot him."
He bought a pistol from his brother-in-law but he did not know whether it had any shells in it. He did not even look at it. He put the pistol on the shelf and gave his brother-in-law $20. The glass in the front door was broken when he knocked his elbow against it.
Deceased was in good physical condition. Defendant once saw deceased pick up the front end of his car.
Defendant also testified that a Tim Leary accused deceased of beating him up; that six weeks prior to the shooting deceased "for no reason at all" struck him and knocked the wind out of him.
In rebuttal the State called several witnesses. John Miller, a police officer, testified that he accompanied defendant to the hospital. Defendant's treatment amounted to a bandage being applied to defendant's forehead. He noticed no other new marks on defendants' body which required treatment.
Shirley Augustyn testified that two days prior to deceased's death she was in defendant's kitchen when she heard a crash and saw defendant pointing an M-1 rifle at her husband through a broken window in the front door.
Linda Augustyn, Shirley's fifteen year old daughter, testified that four or five days prior to deceased's death, defendant pointed a pistol at her head.
Anton Prunckle, a police officer with the Chicago Police Department, testified that he advised defendant of his constitutional rights at defendant's home. Defendant volunteered that he had shot deceased and agreed to give a written statement at the police station. When they arrived at the station the witness again repeated the constitutional warnings. However, on advice of defendant's attorney, defendant refused to give a written statement. Thereafter, defendant told the witness that "he would be able to beat this because he's got a lot of money."
Immediately after resting the State's case in rebuttal the prosecutors, outside the presence of the jury, asked leave to introduce into evidence defendant's prior 1935 murder conviction. The prosecutors stated that it had slipped their minds and that it was oversight on their part. The trial court allowed the State to reopen its case and introduce the prior conviction record into evidence.
In surrebuttal defendant testified that the front door window was broken when he fell against the door and his elbow hit the window. He was not drunk on the morning of January 5, 1967.
The jury found defendant guilty of murder.
• 1 Defendant contends that he did not receive a fair trial because of prejudicial cross-examination and improper rebuttal testimony. Part of the misconduct to which defendant refers is his cross-examination wherein the following occurred:
"Q. I see. How would you describe yourself, Mr. Hicks. Are you a peaceful man?
Mr. Schelly: Objection, your Honor.
Q. Have you ever been drunk, Mr. Hicks?
Mr. Schelly: Objection, your Honor.
Mr. Schelly: I ask that counsel refrain from continuing this line of questioning.
Q. You are a very generous man, ...