APPEAL from the Circuit Court of Cook County; the Hon. KENNETH
R. WENDT, Judge, presiding.
MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
After a bench trial defendant was found guilty of voluntary manslaughter, in violation of section 9-2(a)(1) *fn1 of Illinois' Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 9-2(a)(1)), and sentenced to a term of not less than three nor more than nine years.
On appeal, defendant contends that: (1) the court reached a conclusion regarding defendant's guilt during the State's case, thereby denying her a fair and impartial trial; (2) the court erred in allowing the prosecution to introduce, on rebuttal, testimony that, if admissible, should have been offered in its case in chief; and (3) the trial court erred in denying her application for probation, and in imposing an excessive sentence.
Since defendant does not argue on appeal that the State failed to prove her guilty beyond a reasonable doubt, the sufficiency of the evidence is not in issue and we will only briefly summarize the facts adduced at trial. The record discloses that during June of 1970, defendant began living with Dennis Marvel and Dennis' mother, Mrs. Estelle Marvel, at 2214 East 69th Street. Defendant and Dennis Marvel were not married and shortly thereafter he started seeing a former girlfriend, the deceased, Beatrice Wilson. On May 19, 1971, defendant had a child by Dennis Marvel. In August, 1971, Beatrice Wilson became pregnant as did defendant in September, 1971, each the result of association with Dennis Marvel, who then informed defendant that he was going to be responsible for both relationships and would maintain both families. A proposal by Dennis Marvel to defendant that Beatrice Wilson come live with them was rejected by defendant, following which, on December 3, 1971, defendant, driving her parent's car, met with Beatrice Wilson to discuss the situation. Both were in the car when a scuffle occurred and defendant shot Beatrice Wilson and then pushed her out of the car. Subsequently, defendant was charged with two counts of murder in violation of Ill. Rev. Stat. 1969, ch. 38, pars. 9-1(a) (1) and 9-1(a) (2). It was stipulated at trial that if Dr. Jerome Kearns, a coroner's pathologist, were called to testify, he would testify that the deceased was shot eight times and that the cause of death was a bullet wound of the abdomen and liver.
Defendant's first contention is that the trial judge reached a conclusive opinion of her guilt before hearing all the evidence thereby depriving her of a fair trial. During the recross examination of Investigator Mason, a State's witness, who had questioned defendant regarding the death of Beatrice Wilson, the following colloquy occurred:
"THE COURT: Pardon me. Would you like to clarify that?
MR. PINCHAM [Defense Counsel]: I will get to it.
THE COURT: I mean he told her, whatever you want to call her. That's the way that's the turning part [sic] in this case as far as this Court is concerned. And if I am wrong, I want it cleared up now.
MR. PINCHAM: Would you please read the last question?
(The Reporter read the question from the record above.)
THE COURT: Now, this was on your direct. I want it cleared up for my notes. If I am wrong, I don't want to be wrong.
I would like you to ask the officer did he say something similar to `You know ' or in effect tell her, `Do you know Beatrice is dead?' or something like that this morning. Because that's what my notes show, because if that's wrong it may have a bearing."
• 1 Defendant argues that the trial judge had reached a conclusion concerning her guilt when he made the remark "that's the turning part [sic] in this case as far as this Court is concerned." She refers us to People v. Johnson, ...