APPEAL from the Circuit Court of Cook County; the Hon. SAUL A.
EPTON, Judge, presiding.
MR. JUSTICE EGAN DELIVERED THE OPINION OF THE COURT:
The defendant, Aloisious Zemola, was found guilty of murder by a jury in the circuit court of Cook County. He was sentenced to a term of fourteen to twenty years in the penitentiary. The defendant contends on appeal: the evidence did not establish his sanity at the time of the killing beyond a reasonable doubt; the murder conviction should be reduced to manslaughter; the sentence should be reduced.
The facts leading up to the occurrence are not disputed. The defendant and the deceased had been married for twenty-three years and had seven children. He was forty-seven years old at the time of the killing and worked as a truck driver; she was employed full time. In 1964 they had separated for a period of nine months; the three oldest boys lived with him and the other children with her. After they resumed living together in Midlothian they had many disputes over finances and the children. She accused him of infidelity. He never threatened or struck her. He had been in the Army for almost three years and acquired a Luger pistol while serving in combat in Europe. He kept the loaded pistol in his bedroom. In 1964 a beam falling from a roof struck him on the head requiring two or three stitches. He received emergency treatment and did not lose any time from work.
On August 18, 1969, he came home from work at 7:30 P.M. and fell asleep while watching television. His wife and four younger children were home. The children woke him up to talk to two Navy recruiters who wanted to talk about his oldest son, whose enlistment was running out. He and his wife discussed the possible enlistment of another son then in the Audy Home, who had been in trouble often. The defendant had two cans of beer with the recruiters.
Gregory Zemola, who was thirteen at the time of trial, testified that after the recruiters left his father had two canned martinis. His mother and father began talking about school tuition and a pony the children kept behind the house. His father's voice became louder; his mother's remained normal. Gregory went to bed in a room he shared with his two sisters, thirteen and five, and his brother, two. He was awakened by his mother, who told him his father had broken up some plants and furniture. His father came to the doorway, left and made a number of phone calls. The defendant dialed for information and then a few police stations. After the phone calls the defendant came into the room with the Luger pistol inside his belt. He told Gregory and the older girl to take the other children and get out of the house because they were on their own. Gregory remained in the room while the other children went next door. His father told him he had better get out of the house. His mother was sitting next to Gregory on the bed holding his hand. His father fired four shots from a distance of three or four feet all of which struck his mother, who fell off the bed onto the floor. His father then told Gregory to leave three times. He fired one more shot, but Gregory didn't know where it went. Gregory then ran a few blocks and called the police. He described his father's eyes as "kind of gray and bloodshot, they appeared to be glassy."
The Sheriff's Police arrived and were told by the defendant they could come into the house. They told the defendant to come out several times; he told them to let his children out and he would come out behind them. The defendant fired three shots one of which struck the windshield of a car parked where the police were standing. After the police ascertained that all of the children were out of the house, they fired tear gas cannisters into the home. The defendant came out, was arrested and handcuffed.
One officer testified that the defendant at the scene said he didn't know what was going on and asked why all the police were there. Later at the station he saw the defendant dial a telephone and heard him talk to someone. In his opinion the defendant was not intoxicated.
Randall Zemola, who was twenty at the time of trial, testified that he arrived at his home when the police were handcuffing his father. When he asked him what had happened, his father said nothing and just looked at him. When the officers asked his father when he got the guns, the defendant said, "What guns?" At the station when Randall asked him if his mother was dead, his father said, "Don't listen to it unless you see the body." When his father was in the cell he was not responding to the questions being asked by the police. His father's speech sounded like he was drunk or in a state of shock.
The defendant testified that he remembered walking into the house with his wife after the recruiters left. The next thing he remembered was being in the squad car with the police. He didn't remember seeing Randall at all that night, nor did he remember making any phone calls. He did not intend to shoot his wife; he loved her very much.
Dr. Marvin Ziporyn, a psychiatrist, testified for the defendant. He examined him on August 17, 1970, in the county jail for forty-five minutes to an hour. He made a diagnosis of non-psychotic organic brain syndrome associated with cerebral trauma. Non-psychotic means there is no departure from an awareness of reality. Organic brain syndrome means that there is a complex of symptoms which are associated with permanent, irreversible damage to the actual tissue of the central nervous system, specifically the brain. The cause of this damage was some kind of external force or blow applied to the head. In the course of his examination the defendant gave him a detailed account of his marital difficulties. In response to a hypothetical question he gave his opinion that the hypothetical person could appreciate the criminality of his conduct but could not conform his conduct to the requirements of law. In his opinion the condition of the hypothetical person is permanent. In the history given to him by the defendant, in addition to the injury to his head in 1964, the defendant told him that he had suffered a knock-out in 1950 or 1951 when he was boxing. Also in the history the defendant told him that he had blacked out on quite a number of previous occasions.
Dr. Rigoberto Rodriquez, a psychiatrist, testified on behalf of the State. He examined the defendant in the jury room of Judge Wilson's chambers on January 5, 1970. He had talked to the defendant's sisters before the examination. His examination was a clinical, psychiatric examination consisting of questions which are intended to determine the person's ability to relate to people and to things, his contact with reality, his memory, reasoning, and information about events in the country. He asked the defendant to explain why he was in jail and what had happened. The defendant gave him a narrative of what happened which caused him to be where he was. Neither on direct examination nor on cross-examination was it disclosed what the narrative consisted of. His diagnosis was that the defendant was a passive-aggressive personality without psychosis. During the direct examination of Dr. Rodriquez the following occurred:
"State's Attorney: Q. Based upon your examination and expertise in the field of psychiatry, Doctor, do you have an opinion as to the defendant's ability to ascertain the distinction between right and wrong?
The Witness: A. Your Honor, is hard for me as psychiatrist to
The Court: No, answer it. If you can't answer it, say so.
State's Attorney: I will rephrase it, Your Honor.
Q. Would the defendant be able to understand that a person who takes the life of another performs an act which would therefore be contrary to the law and wrong as opposed to being a right type of act?
Mr. White: Judge, I object.
State's Attorney: Q. Based upon your examination and experience in the field of psychiatry, do you have an opinion as to the sanity ...