APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS
T. DELANEY, Judge, presiding.
MR. PRESIDING JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT:
The defendant, Wilton Bergeron, was tried by a jury and convicted of the murder of Michael Elderedge. He was sentenced to the penitentiary for not less than 40 nor more than 80 years. His first contention is that he was not proven guilty beyond a reasonable doubt.
In July 1969 ten young people held a drinking party in a motel room in Niles, Illinois. The participants ranged in age from 23, the age of the defendant, to 15, that of the deceased. The description by the State and defense witnesses of the occurrences at the party differed in some respect; however, the dominant role played by Bergeron throughout the evening is clear.
During the course of the party Bergeron and a friend, Nicholas Davis (who was also indicted for the murder but who testified for the State) began throwing their knives into the furniture, the walls and the door of the room. Bergeron's knife kept bouncing back from the door and striking Debra Pruitt, who was attending the party with her husband, Robert. She desired to move but Bergeron ordered her to stay where she was.
Shortly thereafter Bergeron became angry with the deceased. According to Bergeron, Elderedge continually annoyed him by commenting upon his long hair and the earring he wore; when Elderedge asked whether he was a homosexual, Bergeron "slugged" him. Witnesses for the State testified that Bergeron struck Elderedge because he refused to drink a can full of gin which Bergeron attempted to force upon him. There was testimony that Bergeron's blow knocked Elderedge unconscious, that he fell to the floor and lay there for some time. Subsequently, Bergeron ordered Davis to take Elderedge into the washroom and straighten him out. Robert Pruitt intervened; he asked Bergeron not to pick on Elderedge since he was young, was drinking, and didn't know what he was doing. Bergeron told Pruitt to sit down and and shut up; he then told Davis to talk with Elderedge.
The Pruitts and others wanted to leave the party but Bergeron stepped to the door, pointed his knife at them and refused to let them go. Later he relented and the Pruitts departed accompanied by two youths, Arthur Kai and David Polz.
Bergeron's attention then turned to Michael Hack, another 15-year-old boy, who had been drinking beer and had fallen asleep on the bed. Bergeron pulled him up by the hair, asked him what he was doing, struck him in the head and tossed him back on the bed.
Bergeron testified that Elderedge began to annoy him once again; when Elderedge proposed the commission of a homosexual act Bergeron slapped him and he fell to the floor. According to the defense, Elderedge picked up a black-handled knife Davis had been throwing and, while still seated on the floor, lunged at Bergeron. Bergeron attempted to kick the knife away but instead kicked Elderedge, who fell over. As Elderedge arose Bergeron picked up his own knife, tried unsuccessfully to make Elderedge drop his, and then stabbed him. Elderedge fell to the floor and Bergeron stabbed him several more times.
The State's witnesses related a different version of the stabbing. They stated that although Elderedge's remarks may have annoyed Bergeron, his attack did not arise from any threatening action on Elderedge's part. Bergeron grabbed Elderedge who was unarmed, and hit, kicked and finally stabbed him repeatedly. Elderedge's attempt to defend himself was futile. Bergeron even threatened those who tried to restrain him from stabbing Elderedge.
After the stabbing, Bergeron, Davis, and two other men, Timothy Malley and Justino Santiago, left the motel in a car. Bergeron's knife, broken in pieces, was left at the motel. At a filling station Malley and Santiago got out, walked away and attempted to hitch a ride. A police car pulled up; Malley and Santiago spoke to the officers and were returned, handcuffed, to the filling station, where Bergeron and Davis were arrested. In the police wagon, Bergeron asked Davis for his knife. A subsequent search revealed that Bergeron had the black-handled knife hidden in his shoe.
• 1 The defendant argues that inconsistencies in the testimony of the State's witnesses created a reasonable doubt of his guilt. It is clear from the testimony that a great deal of drinking took place during the evening. It would be surprising under the circumstances if the accounts given by the witnesses did not contain inconsistencies. Such discrepancies do not destroy the credibility of the testimony of the eyewitnesses, but only go to the weight to be given to it. People v. Willis (1970), 126 Ill. App.2d 348, 261 N.E.2d 723.
• 2, 3 The positive testimony of one credible witness is sufficient to sustain a conviction. (People v. Green (1969), 118 Ill. App.2d 36, 254 N.E.2d 663; People v. Davis (1966), 70 Ill. App.2d 419, 218 N.E.2d 3.) The State produced three witnesses who saw Bergeron stab Elderedge, and their testimony showed that Bergeron acted without serious provocation or threat to his safety. On the other hand, the credibility of Justino Santiago, the sole witness who corroborated Bergeron's testimony was severely shaken. A statement signed by him did not mention Elderedge's alleged references to Bergeron as a homosexual. It conceded, moreover, that he himself was threatened with injury by Bergeron when he tried to restrain him from stabbing Elderedge. The evidence established Bergeron's guilt beyond a reasonable doubt.
Next, the defendant contends that his conviction should be reversed because of numerous trial errors. First among these is the asserted use by the State of perjured testimony by a coroner's pathologist concerning the absence of wounds on Elderedge's hands. It is argued that if there were such wounds Bergeron's testimony that he swung his knife at Elderedge's hands in an attempt to force him to drop his knife, would be corroborated. (Conversely, it could be argued that such wounds would corroborate the witnesses who described Elderedge's attempts to fend off Bergeron's slashes.) On direct examination no inquiry was made as to the presence of these wounds. On cross-examination the pathologist testified that there were no cuts on Elderedge's fingers or hands.
The State furnished a photograph of the deceased which indicated a possible cut on one of his hands. At the conclusion of its case the State, in answer to a defense motion for the production of evidence, said that its police reports did not mention hand injuries but upon inquiry a detective had pointed out a supplementary report which stated that two officers of the sheriff's police force had observed wounds on Elderedge's hands. One of the officers was called as a witness by the defense. His testimony contradicted, in part, the pathologist's testimony. He said that ...