APPEAL from the Circuit Court of McDonough County; the Hon.
KEITH F. SCOTT, Judge, presiding.
MR. JUSTICE HUNT DELIVERED THE OPINION OF THE COURT:
The Defendant, Bernard Helms, was indicted by the Grand Jury of McDonough County for the murder of his wife, Wanda. The cause was tried by a jury. At the close of the evidence for the prosecution, the Court directed a verdict on the charge of murder and the case was then concluded on the lesser included charge of involuntary manslaughter. The jury returned a verdict of guilty on the lesser charge. Defendant was sentenced to the penitentiary for a term of not less than five nor more than eight years.
Defendant appeals to this Court challenging the sufficiency of the proof, the instructions by the Court, the testimony of a witness to an inculpatory statement and whether or not an indictment was still pending at the close of the case. Defendant also requests that his sentence be reduced.
The Defendant, his wife, Wanda, the deceased, and their children lived in a farm house near the town of Good Hope in McDonough County. Defendant's half sister, Matilda, was married to Ronnie Samson and they lived with their children at Route 3, Taylorville, Illinois. Ronnie had a drinking problem and tended to become violent when intoxicated. On previous occasions he had threatened Matilda with a knife, had placed a loaded shotgun across the baby bed and had threatened to kill them all. On occasion he had struck and abused his wife and she had had him jailed for such conduct. After one such quarrel, Matilda left Ronnie and brought the children to Defendant's home on July 7, 1969, where she sought shelter and protection.
The following Wednesday, July 10, Ronnie came to Defendant's home and asked to see his wife, Matilda. Ronnie was admitted to the house and his wife, upon seeing him, ran out the back door. Ronnie ran through the house and out the back door after her. Defendant feared for the safety of his sister and for the members of his family and obtained and loaded a .22 caliber pistol. He then went to the back door and seeing the couple in each others arms placed the loaded gun in a kitchen drawer.
The following day Defendant went to work, returning home about 4:00 P.M. The two families had an early dinner and Defendant, accompanied by his brother-in-law Ronnie, drove back to the Fleetwood Trailer Company about 5:30 P.M. to pick up Defendant's father who commuted with him but had worked overtime that day. After they picked up the father, William, they stopped at a grocery store and then at a tavern known as the Empire Club where they all drank beer. Ronnie testified that he drank more than the Defendant and that the Defendant had two or more bottles of beer at that tavern. The three men then went to the Tic-Toc Tavern where Ronnie and Bill had more to drink and Ronnie bought a half pint of hard liquor as they left. Bill left them at this point and Ronnie and Defendant returned to the house at about 8:00 P.M.
Enroute Ronnie said he had argued with his father-in-law about his mother-in-law and that he, Ronnie was going back to Taylorville yet that night. He said he was going to take Matilda and the children with him. The testimony is conflicting as to whether he added, "or else" to this statement and if so, what he meant by it. Upon arriving at Defendant's house, Ronnie told Defendant to send Matilda out in the yard to talk with him. Defendant relayed this message and Matilda took her older child and went out to a swing set about 20 to 30 feet from the front door of the house to talk to Ronnie.
Defendant testified that he became apprehensive because Ronnie had been drinking and had made an earlier remark about taking his wife and kids home, "or else" and he had a half pint bottle of liquor with him. Therefore, Defendant went to the kitchen drawer and got the loaded gun. He returned to the living room where Wanda was seated in a deep upholstered chair just inside the front door. The rest of the children of the two families were sitting on the living room floor watching television.
Defendant opened a window near the door and chair so that he could hear any commotion outside which might occur between Ronnie and Matilda. He then sat down on the arm of the chair occupied by Wanda with his legs draped partly across hers. The loaded gun was in his right hand hanging at his side. What transpired thereafter was testified to only by the Defendant. Apparently the conversation between Defendant and Wanda concerned the relationship of Ronnie and Matilda and their domestic problems caused by his excessive drinking. Wanda commented about Defendant's drinking that night and told him if he continued he, too, would have to leave. Defendant replied, "If I have to leave, I'll go all the way," and raised the gun toward his head. Wanda reached for the gun or for the hand which held the gun and the gun discharged in some unexplained manner. The bullet entered the left breast, went through the heart and embedded itself in the rear of the chest cavity. Wanda slid down and forward in the chair and Defendant then realized she was hurt.
Defendant went immediately to the door and asked Ronnie and Matilda to come in and help him. They placed Wanda in the family car and Defendant rushed her to McDonough County Hospital at Macomb where she was pronounced dead. She was examined by the duty staff doctor, John L. Simmons, who noticed there were powder burns on the sweater and also around the hole in her breast. Upon completing his examination and determining that she was dead, he went out to the waiting room part of the emergency room and told Defendant she was dead and asked him what had happened. Over objection by counsel for Defendant, Dr. Simmons testified:
"Mr. Helms stated his brother-in-law was sometimes violent when he drank whiskey, so he procured a hand gun. I don't remember whether it was a pistol or a revolver; and that after that there was an argument with his wife about his drinking. She told him he could leave and he threatened himself with the gun, saying he would leave permanently. There was a scuffle and his wife was shot."
The Defendant was the only eye witness to the shooting who testified. His version of the events leading up to the shooting were substantially as related above. He said he and his wife had no domestic quarrels and were not arguing just preceding the shooting. He then testified:
"I was sitting both on the chair and on Wanda's lap or on the arm because the arms on it is low. I was more or less sitting on her lap and on the arm too. I had the gun in my right hand. She was just sitting there talking, and kissing, and loving. I was acting a fool with her. We were talking about Ronnie being out there with the bottle drinking of course, she was always kidding about me and she said if I didn't quit my drinking I could leave too, because I had told her before Ronnie was planning on leaving that night. When she said this she was just joking. She never meant it because she didn't care about my drinking just as long as I didn't drink too much. I have never had a drinking problem. Well, after she said that, I said, `Well, if I got to leave,' just joking around, `if I have got to leave, I'll leave for good', and I was pulling the gun up toward myself. I wasn't serious when I said this. I was holding the gun in my right hand. I don't think I had my finger on the trigger. I think I was just holding the gun by this stock. The hand wasn't on the trigger. She hit my arm and I think she might have hit the gun. I don't know. The gun went off. She scooted down in the chair, and that is when I knew it had hit her."
Ronnie and Matilda Samson testified that they were sitting in the yard within 20 feet of the front door, that they heard no arguments or loud voices preceding the sound of the shot. These, and other members of the family, testified that Defendant and his wife were in love, were affectionate, ...