APPEAL from the Circuit Court of Lake County; the Hon. LLOYD
A. VAN DEUSEN, Judge, presiding.
MR. PRESIDING JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
In a jury trial the defendant was convicted of voluntary manslaughter for killing the deceased, Edra Lou Scott, his common law wife, during the early morning hours of July 3, 1971, and was sentenced to 3-10 years in the penitentiary.
The family consisted of the decedent, her three children and the defendant. Prior to the shooting on July 3, 1971, the defendant was the sole support of the household. On July 2, 1971, the defendant took the decedent, her daughter, and son Daryle shopping. After shopping the decedent and the defendant went to the home of Edna Shelton, the decedent's sister, where they drank beer and vodka. During this time Minnie Pearl Spears came to Mrs. Shelton's home and showed her caesarean operation scar to the decedent and her sister, and offered to exhibit it to the defendant who said he did not wish to see it. After Miss Spears left, Mrs. Scott argued with the defendant and accused him of having an affair with Miss Spears. After drinking some more, the parties went to another home to inquire about a security guard's job at the Zion Benton hospital. The decedent, Mrs. Scott, refused to allow the defendant to take the job and her reason was she did not want him in contact with all those women. The parties apparently laughed at the decedent who became angry with the defendant for his participation in the laughter toward her. Mrs. Shelton, Mrs. Scott, and the defendant left at about 9:00 P.M., returned to the home of the parties where the decedent and the defendant continued their arguments as to her jealousy and suspicion of the defendant carrying on additional affairs at their home. At about 3:30 A.M., after Mrs. Shelton left, the decedent and defendant started arguing and defendant testified that decedent shouted she was going to kill defendant. Defendant testified the decedent pulled a knife from her purse, he disarmed her and she went to the kitchen and obtained another knife which he took from her without any physical harm being inflicted on defendant. The argument awakened Karla Scott, the twelve year old daughter of the deceased, who came into her mother's bedroom and saw the defendant and her mother fighting. Defendant stated decedent got the revolver and in the struggle that ensued, she was shot. However, the daughter testified that after the parties were separated from fighting, defendant went to the bed, got a gun from under the mattress and shot the decedent. Defendant was charged with both voluntary manslaughter and involuntary manslaughter.
Defendant was arrested on July 3, 1971 and incarcerated. A preliminary hearing was not had but defendant was indicted on July 12, 1971, nine days later.
The first contention of the defendant is that the indictment was void for failure to give the defendant a preliminary hearing. The 1970 Constitution took effect three days before the instant offense. Article 1, Section 7 of the Illinois Constitution (1970) provides:
"No person shall be held to answer for a crime punishable by death or by imprisonment in the penitentiary unless either the initial charge has been brought by indictment of a grand jury or the person has been given a prompt preliminary hearing to establish probable cause."
• 1 While not raised by defense counsel, the first question we consider is whether the delay of 9-10 days between the time of apprehension and the indictment by the Grand Jury is in contravention of the 1970 constitutional provision. This question is ordinarily presented where a confession is elicited during the detention. That is not the case before us. In People v. Price (1962), 24 Ill.2d 46 at 56, 179 N.E.2d 685, the Supreme court stated:
"However, this court has held that mere illegal detention in the absence of other coercive circumstances does not constitute a denial of due process, particularly where the accused is neither illiterate nor uninformed as to police practices, and has had previous criminal experience. [Citation.]"
In People v. Bernatowicz (1966), 35 Ill.2d 192, 220 N.E.2d 765, the defendant contended that a delay of nine days from the time of incarceration to the return of the indictment constituted cruel and unusual punishment by informally extending the defendant's sentence. The Supreme Court found no merit to that contention. We therefore hold that the incarceration of the defendant for a period of 9-10 days before he was indicted does not constitute denial of due process.
• 2 The next question confronting us raised by defense counsel is that the defendant was entitled to a preliminary hearing. Prior to the adoption of the 1970 Constitution, the courts of Illinois uniformly held that an accused was not entitled to a preliminary hearing as a matter of right and could be indicted directly. Since the adoption of the 1970 Constitution, the Supreme Court of Illinois has expressly ruled on the question of whether or not the accused is so entitled under the new Constitution. In People v. Hendrix, No. 44688, April 2, 1973, the Supreme Court specifically ruled on this question. In Hendrix there is some confusion as to the actual date of arrest of the accused but he was brought before the Circuit Court on August 18, 1971, and a preliminary hearing was ordered. It appears however, that the State's attorney took the case directly to the grand jury and the defendant was indicted the next day on August 19th. The defendant filed a motion to dismiss the indictment on the ground that he had been originally charged by a criminal complaint and that he was entitled to a preliminary hearing. The Supreme court in quoting Sec. 7 of Article I of the 1970 Constitution stated that in order to prosecute the defendant he had to be indicted. The court then held that no constitutional right of defendant was violated by failure to have a prompt preliminary hearing. Summarizing the holding of the court in Hendrix it would appear that the substance of the court's holding was that it was not necessary to afford an accused a preliminary hearing, and that he could under the 1970 Constitution be indicted directly by the grand jury. Likewise, in People v. Kent, Docket No. 44864, September Term, 1972, the court stated that the 1970 constitutional reference (see above) to a right to a preliminary hearing was new. The court then went on to examine the record of proceedings of the Constitutional convention and concluded that the history of the evolution of this constitutional provision negated any thought that the defendant could not be subsequently indicted, even after no probable cause was found in the preliminary hearing proceedings. We therefore conclude a defendant under the 1970 Constitution may be indicted directly by the grand jury without the necessity of a preliminary hearing.
This court, in People v. Spera (1973), 10 Ill. App.3d 305, 293 N.E.2d 656, also held under the 1970 Constitutional provisions, Art. 1, Sec. 7, that a defendant could be indicted directly without a preliminary hearing.
The defendant contends that the evidence was not sufficient to prove him guilty beyond a reasonable doubt of voluntary manslaughter. The testimony corroborates the eye witness account of the shooting. The State called an expert witness, Miss Komar, who testified she examined the blouse decedent was wearing and the gun used in the shooting, and it appeared there was no powder residue on the blouse near the bullet hole. The only thing that was not done was to perform a chemical test to determine what the substance was around the bullet hole. In Miss Komar's opinion the smudge was not powder residue from the bullet being fired close to the body. From her tests it appeared decedent was shot at a range greater than four feet from the body, indicating little or no powder residue around the bullet hole. It further appeared from the position of the body and the angle of the shot entering the body, decedent was shot from a distance. The eye witness's testimony at the trial varies from the statement she gave after the shooting, but her account that it was the defendant who shot her mother never wavered.
Defendant contends the twelve year old daughter of the decedent, Karla Scott, was incompetent to testify. When she was called she gave the preliminary information as to her name, age, date of birth, name of school, and was asked whether she knew what she did when she took the oath. She replied that she did. Thereupon, the defendant's attorney objected, and the court outside the presence the jury asked the defendant's attorney if there were any question about her ability to understand the oath. The defendant's attorney said "No." Thereupon, counsel proceeded with the testimony of the twelve year old witness.
In People v. Matthews (1959), 17 Ill.2d 502, 162 N.E.2d 381, defendant was found guilty of taking indecent liberties with a six year old child who testified at ...