APPEAL from the Circuit Court of Cook County; the Hon. LOUIS
B. GARIPPO, Judge, presiding.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:
Rehearing denied August 4, 1971.
Defendant was indicted for the murder of James Willoughby (hereinafter "deceased"). After a bench trial defendant was convicted of voluntary manslaughter and was sentenced to a term of one to fifteen years. On appeal defendant contends: (1) that there was no evidence to support his conviction of voluntary manslaughter; (2) that sufficient time intervened between the provocation and the shooting to permit the voice of reason to be heard; (3) that if any crime was committed it was murder and not voluntary manslaughter; and (4) that there was insufficient evidence to establish that the cause of deceased's death was from a gunshot wound inflicted by defendant.
Testimony of Shirley Banks, for the State:
During the evening of October 26, 1968, she accompanied Rosie Childs and deceased to a party at 6020 Carpenter Street, Chicago. She had known deceased for about six months. The defendant was at the party. She left the party at approximately 1:30 A.M. on October 27, 1968, in the company of Mrs. Childs and deceased. She and Mrs. Childs got into deceased's car which was parked across the street from 6020 Carpenter, but deceased stopped to speak with a man. While deceased was talking "the defendant came up and pushed both of them apart, he pushed the other man down." This other man then got up and ran away. Deceased was not fighting with this other man. After defendant pushed deceased, defendant ran across the street and deceased got into the driver's seat of his car. Defendant then came back to the car and told deceased "I'm going to kill you." Deceased said, "Don't shoot me." Defendant pointed his gun low and shot deceased. Defendant said, "I'm going to shoot this black mother ___ ___ ___ again, I ought to kill all three of you." The witness told defendant, "Don't shoot him no more because you already shot him once." She noticed that defendant appeared to be cut on the forehead, and "blood was running down his face."
On cross-examination the witness testified that after defendant pushed the deceased, defendant ran across the street to the house next door to where the party was held, threw off his jacket, spoke to a stranger on the steps and ran back to the car to fire at deceased. Defendant spoke to this man on the steps "no longer than it takes to throw off his jacket and come back across the street." In the meantime deceased was looking for his car keys. "There wasn't that much time elapsed since the boy [defendant] ran across the street."
Before the Grand Jury she said, "Willoughby [deceased] was hit with a can of beer." However, on cross-examination she said deceased was not hit with a beer can. She did see a can of beer thrown.
She never saw defendant fall to the ground. After the shooting deceased drove to the hospital.
Testimony of Rosie Childs, for the State:
Her testimony was substantially the same as that of Shirley Banks. After defendant had pushed deceased, deceased immediately entered the car "fixing to start it up" when defendant came back over from crossing the street and shot deceased. The lapse in time between the pushing incident and the shooting was "about two minutes." At the time of the shooting she observed blood coming down defendant's face.
She did not see defendant on the ground at any time. Defendant shot deceased in the side.
Testimony of Thomas Ptak, for the defense:
He is a police detective in the City of Chicago. On October 28, 1968, Shirley Banks told him that she saw a man throw a can of beer at defendant, striking defendant in the head. She did not know who threw the can of beer, but it was not deceased.
Testimony of Rose Smith, for the defense:
She is defendant's girl friend. On October 26, 1968, she and defendant went to a party at 6020 Carpenter around midnight. Upon leaving the party with defendant, defendant was assaulted by deceased and a man named Curry. Curry and defendant exchanged blows. "And then this fellow Willoughby hit Mr. Stowers in the head with a can of beer." Defendant fell to the ground and ...