APPEAL from the Circuit Court of Cook County; the Hon. FRANK
J. WILSON, Judge, presiding.
MR. CHIEF JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
Defendant Thomas Craven was convicted of murder by a Cook County jury and sentenced to a term of imprisonment of 50-100 years following an earlier trial in which the jury was unable to agree. He urges on this direct appeal that: (1) the trial court erred in certain of its instructions to the jury; (2) a defense witness was improperly prevented from testifying; (3) he was denied a fair trial by the prosecutor's use of a prior conviction; (4) the prosecutor was permitted to make prejudicial and inflammatory remarks during cross-examination and closing argument; and (5) he was not proved guilty beyond a reasonable doubt.
At approximately 2:30 P.M. on August 17, 1967, an unruly patron caused a disturbance in Wolfie's Snack Shop, located at 8 South Morgan Street in Chicago. The proprietor, Roy Wolfman, forcibly ejected the man from the restaurant; present at the time were three snack-shop employees: James Satiri, James Dougherty and William Blomski, together with Allison Marr, who was servicing a cigarette vending machine on the premises. Satiri, Dougherty and Marr testified at trial as to what next occurred, but their recollections differed in several respects.
Satiri, a cook, testified that once outside, the boisterous customer, identified only as Renecker, began pounding on one of the snack shop's plate glass windows with a large screwdriver; Wolfman became disturbed, secured a plated revolver and went outside, ordering Renecker to leave. A struggle occurred and Satiri observed Wolfman hit Renecker on the shoulder with the revolver. Satiri could not be certain how many blows were struck with the gun. After several moments, defendant and Tony Lopez came running from the direction of Madison Street and joined the struggle, pinioning Wolfman's arms behind him. Satiri was casually acquainted with these two men as "Arkie" and "Lopez." Defendant was carrying a black automatic pistol in his hand, and Satiri stated that he saw him step between two cars and attempt to cock the weapon during the fight. The struggle continued until Satiri heard one shot fired and Wolfman fell to the ground. He did not see who fired the shot. Craven and Lopez approached the body and then ran north toward Madison Street. Satiri identified the defendant as one of the two men who intervened in the altercation that afternoon, and he indicated that People's Exhibit 1 resembled the black automatic pistol that defendant had carried.
Dougherty testified that he was employed as a dishwasher at "Wolfie's" on the date of the occurrence and witnessed the disturbance which resulted in Wolfman removing a patron, a bill peddler, from the snack shop. Dougherty's view of the events was intermittent since he was carrying dishes back and forth to the kitchen at the time. He next observed his employer scuffling outside with the patron; it "got a little rough" and Dougherty could see that the bill peddler had a screwdriver and Wolfman had his silver-colored gun out. Dougherty continued with his duties and his attention was next directed to the struggle when he heard someone shout "Wolfie is in trouble" and then the sound of a gunshot. As he looked outside, Dougherty saw Wolfman grappling with the two other men, one of whom held a black gun in the air, which Dougherty thought had been fired. Dougherty also identified People's Exhibit 1 as resembling the black gun he saw, and he believed that defendant was the man who held it. Dougherty testified that he looked for a meat cleaver so that he could assist Wolfman. As he did so, he heard a second shot and looked out to see Wolfman's body lying on the sidewalk. He did not see the shot fired. He then followed defendant from the scene for a short distance to a hotel on Madison Street.
Marr testified that he was in Wolfie's Snack Shop on the date in question and was repairing a cigarette vending machine. He stated that he observed a scuffle in the restaurant, during which one of the cooks, apparently Blomski, ejected a patron for creating a disturbance. The patron left and then returned to the walk in front of the shop carrying a screwdriver and accompanied by two men. The patron began beating on the snack-shop window with the screwdriver. Wolfman, with whom Marr was acquainted, left his place behind the counter and went to the rear, returning with a shiny, plated revolver in his right hand. Wolfman went outside, waving his revolver at the three men; the two newcomers then began fighting with Wolfman, while the ejected patron with the screwdriver "disappeared." After the fight began, the shorter of the two men produced a small black pistol similar to People's Exhibit 1 and discharged it once into the ground. The men continued to strike Wolfman and he struck them back; the larger of the two men, whom Marr positively identified as defendant, threw Wolfman to the ground, causing him to drop the revolver. Defendant then picked up Wolfman's revolver and, at a distance of approximately three feet, aimed the weapon at Wolfman's head and fired a single shot. Both men then ran toward Madison Street, defendant carrying the shiny, plated revolver. On cross-examination Marr, who was then serving in the armed forces, testified that he had not come forward to the police at the time of these events nor had he testified at defendant's first trial.
Other evidence for the State established that defendant was arrested at the Adams Hotel on West Madison Street within one hour of the occurrence. A .32-caliber Beretta automatic pistol, People's Exhibit 1, was recovered from the room of an acquaintance of defendant, Robin Young, who told police that he had taken it from defendant when he entered the hotel. Defendant's arm was bleeding from a cut above the right elbow at the time of his arrest. The proof established that Roy Wolfman died of a gunshot wound to the head, the bullet piercing the neck and chest. A .38-caliber bullet was removed from his body and that bullet could not have been fired from the black automatic pistol admitted in evidence. The shiny, plated .38-caliber revolver owned by Wolfman was never recovered.
Defendant, testifying in his own behalf, stated that he, Patricia Bittner and a man he knew only as "Tony" were standing on the southwest corner of Madison and Morgan Streets at the time of this occurrence. They observed a man, whom defendant knew to be employed in Wolfie's Snack Shop, pistol-whipping another man on the sidewalk about thirty feet away. Defendant asked Lopez for the gun which he knew Lopez was carrying so that the latter couldn't harm anyone, and defendant tucked the gun into his own belt. They then approached Wolfman and defendant ordered him to stop, grabbing him by the left coat sleeve. Wolfman struck him with the plated gun he had in his right hand, and defendant either stumbled or was pushed, falling to the pavement. He testified that he was bleeding from a cut on his arm, and Lopez's pistol had fallen out of his belt. As he lay on the sidewalk, defendant heard a shot and someone said: "Arkie, [defendant's nickname] you'd better get out of here." Defendant testified that he was frightened; he grabbed the black automatic pistol from where it had fallen and either walked rapidly or ran from the scene toward Madison Street. He turned west on Madison and as he drew abreast of the Adams Hotel, an acquaintance of his, Robin Young, called to him from a room in the hotel. Defendant entered the hotel and went to Young's room where Young examined his bleeding arm. In response to Young's question, defendant told him that he "may have been shot," but Young replied that it was only a cut and he wrapped defendant's arm in a wet towel. Defendant testified that he then attempted to eject the shells from Lopez's pistol, but succeeded only in firing a shot through the ceiling. Young took the gun from him and left the room with it. Defendant and Young were arrested shortly thereafter. Defendant denied that he shot and killed Roy Wolfman. On cross-examination, the State questioned defendant concerning his conviction of robbery in the State of Washington in 1952, and, in rebuttal, introduced a purported copy of that judgment.
Defendant also attempted to offer the testimony of Rosemary Dawson, who would have related details of a meeting with Tony Lopez the evening after the shooting. The offer of proof made by defense counsel included an alleged confession of the shooting by Lopez to her and the fact that she saw Wolfman's plated revolver in Lopez's possession that night. Because Mrs. Dawson, with whom defendant was living, had been present in the courtroom during a portion of the previous testimony in violation of an order excluding witnesses, she was barred, on the State's motion, from testifying.
The defendant first argued that he was denied a fair trial when his tendered instructions on voluntary manslaughter were refused. The Criminal Code provides in pertinent part:
"(a) A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:
(1) The individual killed,
Serious provocation is conduct sufficient to excite an intense passion in a reasonable person.
(b) A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, ...