APPEAL from the Circuit Court of Champaign County; the Hon.
BIRCH E. MORGAN, Judge, presiding.
MR. JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:
Mr. JUSTICE CRAVEN delivered the opinion of the court:
Rehearing denied December 29, 1971.
The defendant was found guilty in a bench trial of involuntary manslaughter and unlawful use of weapons. He was granted probation conditioned upon the first 12 months being served in the State Penal Farm in Vandalia. This appeal follows the conviction and judgment of probation.
The defendant asserts that he did not knowingly and understandingly waive his right to a jury trial; that he was not proved guilty of involuntary manslaughter beyond a reasonable doubt; and finally, that the trial court abused its discretion when it conditioned the grant of probation so as to require the defendant to serve one year at the Illinois State Farm.
• 1 The defendant was admonished as to his right to a jury trial the admonishment being in the form of a usual discussion of the right to a trial by jury. The defendant was not informed, however, that should he elect a jury trial, unanimity of the jury would be required and further that an essential ingredient of a trial by jury included a right to a trial before 12 impartial jurors who would be under the direction and supervision of a judge.
In People v. Alexander, 45 Ill.2d 53, 256 N.E.2d 785, the court held that a defendant was adequately admonished and that he knowingly and understandingly waived his right to a trial by jury when the admonition consisted of the trial judge informing him that "you have a right to a jury trial if you so desire." Such admonition obviously would not include that which the defendant characterizes as an essential ingredient or component of a jury trial an understanding of which is a necessary condition precedent to a knowing and understanding waiver. We view the decision in Alexander as determinative of this contention.
A consideration of the defendant's second contention that the evidence does not establish his guilt of involuntary manslaughter beyond a reasonable doubt requires a recitation of the essential evidence adduced.
On January 2, 1969 at around 7:00 P.M. in the evening the defendant was at the home of some friends in Champaign, Illinois. There were several other people in the household, all of whom had gathered for the purpose of a farewell party to one Archie Moore who was then on leave from and about to return to his military unit in Vietnam. At a point early in the evening, the defendant, Carl Frazier and a Louis Mitchell were in the kitchen. Other guests were in an adjoining room. Mitchell was talking on the telephone with his girlfriend. Defendant and Frazier were seated opposite each other around a kitchen table. The testimony is uniformly to the effect that they were laughing and joking. At least there is no indication of any hostility between the defendant and Frazier at this particular time in the evening nor at any time prior thereto. The defendant reached into his hip pocket and pulled out a .32 calibre revolver. The testimony indicates that the defendant was looking in the direction of Frazier when he was in the process of removing the gun. In the process of removing the gun it discharged and the bullet struck Frazier in the left temple.
Mitchell saw the defendant reach into his hip pocket, heard the discharge of the gun, and the other occupants of the house likewise heard the shot, and went into the kitchen where they saw Frazier lying on the floor bleeding.
The defendant was screaming for someone to call the police and an ambulance. When the ambulance arrived, the defendant, who was described as crying hysterically, accompanied the ambulance to the hospital where Frazier was pronounced dead on arrival.
At the hospital the defendant talked with an orderly and requested the orderly to call the police. Defendant also talked with a nurse, Charlotte Golden, who testified that the defendant told her at the hospital that the decedent Frazier had said a "funny word" about defendant's girlfriend and that the defendant shot him. The orderly also testified to the effect that the defendant told him that he shot Frazier after Frazier said something to him.
Upon the arrival of the police defendant was placed under arrest; he was admonished as to his rights, then gave a statement to the police as to what happened at the residence. He was described by the police officer as "cooperative and not evasive."
An expert witness called by the State testified as to the firing characteristics of the gun, explaining that the weapon could be discharged by a 13 1/2 lb. pull on the trigger from the uncocked position, or by a 6 lb. pull on the trigger from a cocked position. A ...