APPEAL from the Circuit Court of Cook County; the Hon. WALTER
J. KOWALSKI, Judge, presiding.
MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Defendant was indicted for murder. After a jury trial defendant was convicted of voluntary manslaughter. On appeal defendant contends:
1. The court erred in refusing to allow defendant to impeach a prosecution witness;
2. The court erred in admitting a statement made by the deceased to a bystander; and
3. Defendant was not proven guilty beyond a reasonable doubt.
It is undisputed that on February 21, 1970, defendant, Tommie Gilchrist, Jimmie Lee Hazley and Elsie Jamerson went from a tavern to a nearby apartment to play cards. The card game had commenced when an argument ensued between Tommie Gilchrist and Elsie Jamerson (hereinafter the deceased).
Tommie Gilchrist testified that as he started to walk away from the altercation between the deceased and himself the deceased threw a bottle which struck him on the shoulder. He turned and called to a man in another room. While his back was turned he heard a gunshot. He turned around and saw defendant and the deceased "tussling at arm's length." He saw a gun in defendant's hand. He heard more shots, started for the door of the apartment and urged defendant to depart with him.
Jimmie Lee Hazley testified that after the deceased threw the bottle which struck Gilchrist she, Mrs. Hazley, urged the deceased not to "toss up" the apartment. The deceased replied, "okay, come on, let's go." Mrs. Hazley then went to the bathroom. While in the bathroom she heard gunshots fired in rapid succession. She came from the bathroom and saw defendant turn around and say to Gilchrist, "Come on, let's go." The deceased said to her, "Jimmie, that whore shot me and I'm hurt."
Defendant testified as follows: that following the argument between the deceased and Gilchrist the deceased began to throw bottles. The deceased threw one bottle which missed Gilchrist and then threw another bottle which struck him on the shoulder. Defendant told the deceased to stop whereupon the deceased swore at her, picked up another bottle and came at her. The deceased and defendant were three to four feet apart. Defendant removed a pistol from her purse to frighten the deceased and repeated the command to stop. Defendant fired two shots at a downward angle of approximately 45 degrees in the direction of the deceased. Defendant and the deceased scuffled. The deceased struck defendant in the arm and in the side with the bottle. Defendant's glasses fell off and she asked Jimmie Lee Hazley to retrieve them for her. Mrs. Hazley handed defendant her glasses and defendant put them back on. During that interval the deceased almost succeeded in taking the gun from defendant. Defendant pulled the gun back and it fired three times. The deceased fell to the floor. Defendant and Gilchrist then departed from the apartment. Defendant further testified that she is 5 feet 7 inches tall and at the time of the occurrence weighed in excess of 175 pounds.
It was stipulated that the deceased was 5 feet 7 inches tall and weighed 134 pounds. There were four bullet wounds in the body of the deceased; two entered the heart, one caused only superficial damage to the right side of the deceased over the second rib, and the other penetrated the abdominal wall causing a laceration of the colon.
Romas Arbataitis testified that he was a policeman for the City of Chicago. He had occasion to be in the apartment where the shooting took place after the occurrence. He recovered a .22 caliber revolver from the stairs leading to the apartment that contained five expended cartridges and one live cartridge. The condition of the apartment seemed normal to him; things appeared to be in their proper place.
James Fraghia testified that he was a policeman and had occasion to be in the apartment after the deceased was shot. He did not notice anything strewn about. He did not notice any liquor bottles.
Defendant initially contends that the court erred in refusing to allow defendant to impeach a prosecution witness. Upon direct examination of Tommie Gilchrist he testified that while he and defendant were walking from the tavern to the apartment where they were going to play cards defendant said, "I ought to draw," and thereupon displayed a gun which was identified at the trial as the one used by defendant to shoot the deceased. On cross-examination, after having laid a proper foundation, defendant sought to impeach the witness by attempting to elicit that the witness failed to relate the foregoing to the police the day after the crime when he provided them with a statement. The prosecution objected to defendant's ...