APPEAL from the Circuit Court of Winnebago County; the Hon.
WILLIAM R. NASH, Judge, presiding.
MR. JUSTICE ABRAHAMSON DELIVERED THE OPINION OF THE COURT:
Following a jury trial defendant was found not guilty of murder, but guilty of involuntary manslaughter, of Edgar Beach and was sentenced to a term of three to ten years in the penitentiary. He appeals charging (1) failure of his appointed counsel to move to suppress evidence amounted to incompetence of counsel, which deprived him of a fair trial, (2) defendant's guilt of involuntary manslaughter was not established beyond a reasonable doubt, and (3) the court erred in the giving of, and failure to give, certain instructions to the jury.
The principal witness for the State, William Hart, testified that after leaving work about 6 P.M. on March 20, 1970 he, the defendant, and Beach stopped at a liquor store and bought three bottles of wine, some cigarettes, and a pint of whiskey and drove to the residence where Beach and defendant lived. They sat down in the kitchen, smoked, talked, listened to the radio, and each drank a bottle of wine; the defendant and Beach also drank the pint of whiskey; they also had some bacon to eat. About 8:40 P.M. Hart and the defendant drove to a tavern, bought three more bottles of wine and returned to the house. About 9:30 P.M. a fight started between defendant and Beach. Defendant punched Beach twice and Beach fell to the floor, pulling defendant down with him. After struggling defendant got up and while Beach was holding onto his legs, defendant kicked Beach eight or ten times in the head and face and then pulled Beach up from the floor. The argument continued and the defendant told Beach to get out and pushed him out the back door. The defendant and Hart continued drinking, eating and talking. Then the defendant became angry and said, "He ain't had enough," went to the bedroom, came out with a hammer, and went out the front door. About four minutes later the defendant returned and went to the bedroom. Hart saw nothing in his hand. Defendant then came out of the bedroom and sat down at the table. They had more drinks in the next 15 or 20 minutes. Hart then left the house about 9:30 and proceeded to look outside for Beach. He found him lying at the side of the house, knelt down and shook him, and asked Beach to come with him. He couldn't feel any "bad wounds on him but he had a little blood". He held Beach's wrist but felt no pulse. Hart then drove to Lenny's Tavern arriving there about 10:30 and told Lenny "I think Omer [defendant] wiped Ed [Beach] out with a hammer." Lenny agreed to call the police and told Hart to wait.
The police picked up Hart about 11 P.M. and then drove to defendant's house where the police officer who testified observed the body of Beach. He forced the front door open and arrested the defendant advising him of his rights. The police inspected the house and yard and found the hammer head about seven feet from Beach's body, but did not then find the hammer handle. The hammer head was rusted and no blood was found thereon. Another police officer testified that on March 21 he made a search of defendant's home and there found the hammer handle sticking out of a boot. It was stipulated that while the hammer head and handle had similar general physical characteristics, the hammer handle could have once been inserted in the hammer head. It was also stipulated that type A human blood was found on defendant's shoes and on the bedroom floor of his home. Beach's blood was type A.
Dr. Kenneth M. Truemner, a pathologist, testified as to the cause of death of the victim Beach. He performed an autopsy and found indications of recent trauma on the face and head, several bright red contusions on the cheeks and lips, and the soft tissues of the nose; there was swelling of the lips and their surface showed numerous bursting-type lacerations; decedent's nose had been broken. The injuries were all in the area of the head and face. Internal examinations disclosed an increase in the blood and other fluids in the lungs, and the blood did not clot properly. In his opinion Beach's death occurred from the interaction of three causes: (1) the rather severe beating about the head and face, (2) the extremely high alcohol level of .374 grams (400 grams can be associated with death from alcoholic intoxication), and (3) asphyxiation indicated by the fact that the blood did not coagulate. He testified that the beating about the head and face were a contributing cause of the death mechanism and were consistent with a blow by the sole or other part of a shoe. There were no solid clots blocking the nasal passages and the mud in the nose did not block air passage.
Defendant testified he bought a pint of whiskey and cigarettes at the liquor store before going to his house with Beach and Hart. After finishing the bottle of whiskey he went to his bedroom and laid down. Beach and Hart were arguing, and at one point they knocked everything off the kitchen table. When this happened defendant hit Beach with the back of his hand causing Beach's nose to bleed. Defendant denied striking him again or pushing him out the door or going out the door with a hammer. He also denied going with Hart to a tavern for more wine. He testified that because of the arguing he went across the street to his mother's home and stayed for about 15 minutes. On his way back he saw "a black car sitting out there * * * the man got off the porch * * * got in the car and pulled away."
Defendant's mother testified that the defendant came about 10 P.M., stayed about 20 minutes, and that as defendant was crossing the street she observed a stranger get in a car and drive away. Defendant's brother testified that he called at defendant's house about 9 or 10 P.M. on March 20, that Hart let him in, and that when Hart and Beach were arguing, defendant told them to shut up or go fight outside and finally "smacked" Beach across the nose causing bleeding.
Defendant contends that his counsel should have moved to suppress certain evidence, i.e., the hammer handle which was discovered in defendant's house by the police on the day following his arrest, and that his counsel's failure to do so amounted to incompetence depriving him of a fair trial. It is of course possible that his counsel's failure to move to suppress that evidence was due to defendant's having consented to the search of his house on the day following his arrest. We do not know. However, the record shows that the defendant testified that he signed a "dozen" documents after his arrest. One of these could have been a consent to the search.
• 1 Examination of the entire record here discloses that defendant was effectively represented by his counsel throughout the trial. The quality of his representation may be reflected by the fact that defendant was acquitted of murder and convicted of involuntary manslaughter.
Even if the hammer handle should have been suppressed, the jury had properly before it the hammer head which was found a few feet from Beach's body. If it were error to receive the hammer handle in evidence, it was harmless error beyond a reasonable doubt. (Chapman v. California, 386 U.S. 18, 22, 24; People v. Smith, 38 Ill.2d 13, 15.) The jury had substantial overwhelming evidence to support its verdict without the hammer handle.
• 2, 3 Defendant's contention that his guilt of involuntary manslaughter was not proved beyond a reasonable doubt rests on testimony of the pathologist on the cause of death. However, the pathologist's testimony which was uncontradicted was, in substance, that Beach's death was caused by the severe beating he received from the defendant in combination with the other factors, i.e., high alcohol level and asphyxiation. In People v. Meyers, 392 Ill. 355, 359, the court said:
"The law is that when the State has shown the existence, through the act of the accused, of a sufficient cause of death, the death is presumed to have resulted from such act, unless it appears death was caused by a supervening act disconnected from any act of the defendant."
Unless there is an independent intervening act between defendant's unlawful act and death, to which death may be attributed, the defendant's unlawful act is the cause of death. In People v. Paulson, 80 Ill. App.2d 44, 48-49, the court said:
"A supervening act will not relieve an accused from responsibility for the death of another unless that act was disconnected from the act of the accused. * * * The chain of events ultimately causing the death of Lee Jones was set in motion by the act of the defendant and ...