APPEAL from the Circuit Court of Cook County; the Hon. THOMAS
R. McMILLEN, Judge, presiding.
MR. PRESIDING JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Three indictments were returned against defendant: the first charged him with the murder of Lee Robinson, the second charged him with the aggravated battery and attempted murder of Thomas Troope, and the third charged him with the aggravated battery and attempted murder of Hudie Redmond. Pleas of not guilty were entered to all charges and the indictments were consolidated for trial. Defendant waived a jury with respect to the charges relating to Troope and Redmond and trial was had on all charges simultaneously with the jury being excused while evidence irrelevant to the murder charge was presented. The jury found defendant guilty of voluntary manslaughter and the court sentenced him to a term of six to fifteen years. The court found defendant not guilty of the other charges. On appeal defendant contends:
(1) that he was not proven guilty beyond a reasonable doubt,
(2) that the misconduct of the prosecutor denied him of a fair trial,
(3) that the court erred in instructing the jury, and
(4) that the court erred in pronouncing sentence.
The evidence presented by the State is summarized as follows.
Katherine Huntion testified that she was Robinson's sister. She saw him at her house on October 23, 1966. At that time he was alive and in good health. She next saw Robinson at the County Morgue on October 27, 1966.
Thomas Troope testified that on October 27, 1966, he was a production supervisor in charge of about 35 people on the fourth and fifth floors of the Curtiss Candy Company. The fourth floor of the plant had two rooms, the circlet department and the mint room, separated by a wood and glass partition. The mint room had two doors, one on the north and the other on the south. Defendant was a machine operator in the mint room and Robinson was a mechanic who, in the discharge of his duties, generally carried some small tools. Troope first saw defendant that day at 5:40 A.M. and Robinson at 6:00 A.M. At 9:00 A.M. Robinson, in the discharge of his duties, went into the mint room to check a machine. Approximately five minutes later defendant came to Troope and told him that Robinson had refused to fix the machine. Robinson, soon appeared and denied the accusation, but added that defendant was loading the machine improperly. Robinson made no threats and there was no altercation. At 1:00 P.M. while in the circlet department helping Gussie Winston repair her machine, Troope noticed Robinson cleaning the machine in the mint room. About four minutes later defendant was near the machine in the mint room motioning for Troope to come into the room. Defendant then went into the circlet department, fired a gun and Hudie Redmond fell to the floor about six feet from Troope. After Thomas Chappell disarmed defendant, Troope went into the mint room and there, saw Robinson lying on the floor bleeding from his head. Troope saw nothing in Robinson's hand or on the floor near him. Robinson was not referred to as a bully.
Eugene Tapia, a physician and surgeon specializing in pathology, after being duly qualified, testified that on October 28, 1966, while employed as a coroner's pathologist, he conducted an internal and external examination of Robinson's body. A bullet wound of entry was found on the right anterior portion of the neck just below the ear. The bullet traveled downward and towards the back of the body, piercing the jugular vein, the arch of the aorta, the left lung and exiting the body at the most anterior section of the chest approximately eight centimeters from the left armpit. The bullet was fired from more than two feet away and this wound was the cause of death. Another bullet wound of entry was found at the extreme right anterior side of the chest. This bullet traveled horizontally across the chest lodging itself in the left nipple.
Hudie Redmond testified that on October 27, 1966, he worked at the Curtiss Candy Company as a janitor. While in the fourth floor circlet department he saw defendant walk down an aisle from the south, approach Troope, and, while holding a piece of iron, extend his hand in front of his body.
Gussie Winston testified that on October 27, 1966, she worked for the Curtiss Candy Company as a machine operator in the fourth floor circlet department. At approximately 1:00 P.M., while Troope was helping her fix a machine, she heard a shot, turned, saw defendant fifteen feet from her, heard another shot, and ran away.
Catherine Willis testified that on October 27, 1966, she worked at the Curtiss Candy Company in the fourth floor circlet department. At approximately 1:00 P.M. she heard a shot and saw defendant holding a gun.
Thomas Chappell testified that on October 27, 1966, he worked for the Curtiss Candy Company as a cook in the circlet kitchen on the fifth floor. Shortly after 1:00 P.M. that day he came into the circlet room and there, saw defendant carrying a blue steel .38 revolver and standing face to face with Troope. At Chappell's request defendant gave him the weapon but then tried to get it back and a scuffle ensued. In the mint room Robinson, whom Chappel had seen earlier that day carrying his tool box, was lying on the floor. Chappel saw no knife but wrenches were on the floor near the body. Defendant was a good worker and minded his own business but Robinson, a bully, gave defendant a hard time. Chappell, although he was not on the fourth floor when Robinson was killed, told an investigator that based upon what he had heard about Robinson, defendant had acted in self-defense.
Joseph Ippolito, a Chicago police officer, testified that at 1:15 P.M. he responded to the Curtiss Candy Company and went up the rear elevator to the fourth floor where, upon disembarking from the elevator, he was met by two employees who were holding defendant who he arrested. Ippolito then went into the mint room and made a physical examination of the premises. That examination revealed a body lying face down in front of a machine. Although he saw a ...