APPEAL from the Circuit Court of Sangamon County; the Hon.
WILLIAM H. CHAMBERLAIN, Judge, presiding.
MR. JUSTICE SIMKINS DELIVERED THE OPINION OF THE COURT:
The defendant-appellant Nancy Williams was indicted for murder, voluntary manslaughter and involuntary manslaughter in connection with the death of one James Brack whom the defendant shot. The jury returned verdicts of not guilty on the murder and voluntary manslaughter counts and found defendant guilty of involuntary manslaughter. Defendant was sentenced to an indeterminate term of 1-10 years. There is no dispute over the fact that defendant fired the shot which caused the victim's death.
On appeal the defendant states the sole issue is "did the State fail to prove the defendant guilty of involuntary manslaughter beyond a reasonable doubt?" We affirm. Briefly summarized the evidence established that on the evening of February 11, 1971, the defendant and her husband, James Williams, went to a tavern in Springfield, Illinois. During the evening James Williams and the victim, Brack, began fighting. Brack was a large individual weighing between 205 and 250 lbs. and was approximately six feet tall. James Williams was about 5'10" in height and weighed between 135 and 165 lbs. There was conflicting evidence as to whether or not Brack had a gun. The defendant testified that he did and was using it to beat her husband; other witnesses said that Brack was not possessed of a weapon. No witness testified that Brack fired a shot. During the struggle Brack and Williams fell to the floor either in a kneeling position or with Brack on top of Williams. The defendant was about six feet away from her husband and Brack while they were fighting. She pulled a 32 calibre revolver from her brassiere, fired twice into the ceiling, pulled the trigger a third time resulting in a misfire, shot a fourth time, the bullet striking Brack in the back, and his death ensued. The police recovered three spent cartridges and one with burn marks indicating a misfire. Apparently the only injury sustained by James Williams in the scuffle was a scratch or cut on his head. The precise number of persons present in the tavern during the incident is not established, estimates ranging as high as 40. The defendant did not testify, but a statement given by her to the police was introduced into evidence and read to the jury, and she testified that the tavern was "kinda crowded". Her version of the incident was that she went to the tavern with her husband, that she was sitting at the bar when her husband called to her, that when she looked Brack was ready to jump on her husband, that she saw a gun in Brack's left hand, that Brack then jumped on her husband and started fighting and beating him, that no one stopped the fight, and that she then pulled the gun out and fired it twice, not at Brack but into the ceiling. That her purpose in doing this was "to try to stop them". That she pulled the trigger a third time and nothing happened but the next time "I hit him". That at this time Brack was on top of her husband and had him down on the ground. That Brack was beating her husband with the gun. When asked why she shot James Brack her answer was, "Because I was scared he was going to shoot me too, because I was scared he was going to shoot James and me." Her statement further recited that she was 16 years of age, had quit school three years ago, had been married to Williams when she was 14 years of age and had one child. That her husband had given her the gun sometime before, that she had never fired the weapon before and did not know that it was loaded.
Other witnesses testified that James Williams and Brack were engaged in conversation for 5 to 10 minutes before the struggle commenced, and that this conversation was conducted in moderate tones of voice. The conversation appears to have been concerned with Brack's request that Williams pay a debt which Brack claimed was owed to him. Just before the struggle commenced Williams, according to some witnesses, removed his glasses, laid them on the bar and said to Brack, "Well, we can get it on right here" at which time the struggle commenced. Some witnesses testified that they saw no blows struck, that the two men were scuffling or wrestling. The testimony as to the distance between defendant and Brack, at the time the shots were fired, is in conflict and varied from 4 to 10 feet. The witness Kreiser, a crime lab analyst for the Bureau of Identification of the State of Illinois, testified that he had tested Brack's clothing and found no powder particles on it. Presence of such particles would have indicated that the range from the muzzle of the weapon to the clothing "would have been relatively close".
Counts 1, 2, 3, 4, 9 and 10 of the indictment were submitted to the jury. Count 1 charged that defendant committed the offense of murder "In that she intentionally and knowingly shot and killed James Brack with a pistol * * *."
Count 2 charged that the defendant committed the offense of murder "In that she with intent to do great bodily harm to James Brack shot and killed the said James Brack with a pistol * * *."
Count 3 charged that the defendant committed the offense of murder "In that she, knowing that such acts would cause death, shot and killed James Brack with a pistol * * *."
Count 4 charged that the defendant committed the offense of murder "In that she, knowing that said acts created a strong probability of death to James Brack, shot and killed the said James Brack with a pistol * * *."
Count 9 charged that the defendant committed the offense of voluntary manslaughter "In that she, acting under a sudden and intense passion resulting from serious provocation by James Brack, shot and killed the said James Brack with a pistol * * *."
Count 10 charged that the defendant committed the offense of involuntary manslaughter "In that she, acting in a reckless manner, shot and killed James Brack with a pistol * * *."
While the defendant states the sole issue in terms of the sufficiency of evidence to establish the guilt of the defendant beyond a reasonable doubt on the involuntary count, the thrust of her argument may more accurately be set forth and summarized as follows:
(1) She argues that the defendant would be guilty of murder if she intentionally shot Brack without legal justification.
(2) If she was acting under a sudden and intense passion resulting from serious provocation, she would be guilty of voluntary manslaughter if her ...