APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR
C. DUNNE, Judge, presiding.
MR. JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 9, 1974.
Juan Rivera Vega was convicted of involuntary manslaughter after a jury trial in the Circuit Court of Cook County and was sentenced to a term of three to nine years in the penitentiary. The issues on appeal are whether the defendant was denial a fair trial because of the conduct of the prosecuting attorney; whether the jury's verdict of guilty of involuntary manslaughter was supported by the evidence; and whether the defendant's sentence was excessive.
On the evening of September 10, 1970, the deceased, Ruben Rodriguez Torres, and his brother, Anibal, went to the defendant's second floor apartment at 1942 South Carpenter in the City of Chicago to play dominoes. Miguel Cabrera, who lived in the first floor apartment at the same address, was also present.
Anibal Torres testified an argument broke out about 1:00 A.M. The defendant accused the brothers of cheating, and they started to leave. The defendant blocked their way and called Ruben "chicken," but they pushed their way past Vega and continued down the stairs. Vega followed them out and said he would kill Ruben and then say he had done it in his own house. When they got to the street, the defendant came behind them with a gun and fired the first shot while their backs were turned. The deceased approached the defendant and tried to take the gun away. It was then he was fatally wounded in the abdomen. Anibal Torres then kicked Vega in the wrist, got the gun, and ran to get his father. When he returned, the body of his brother had been removed from the street. Neither brother had a weapon.
The defendant testified that while playing dominoes at about 12:30 A.M., his wife got up and asked everyone to leave because they were making too much noise. Miguel Cabrera left at that time, but the Torres brothers stayed. The defendant said he went to the washroom and upon returning to the room he was hit by Ruben Torres. The brothers said "bad words" to him and told him they would kill him. It was then he got his gun from a cabinet near the front door. The brothers grabbed him and tried to drag him out the door and down the stairs. He was afraid for his life, but did not intend to use the gun and did not attempt to point it at anybody. The gun went off on the stairs when he was kicked in the wrist by Anibal. After the one shot was fired, Ruben stayed on top of him and Anibal took the gun. He went upstairs to his apartment and waited for the police.
The defendant's wife testified that after telling everyone to leave, she came out of her room a second time when the fighting broke out and went to the third floor to ask for assistance because there was no telephone in her apartment, but no one answered her knock. She also testified that when the shot rang out she thought her husband had been killed and did not know he had not been shot until a police officer told her.
Both the defendant's sons, aged 20 and 23, testified they were sleeping at the time of the altercation. One lived in the same apartment with his parents, and the other lived in another apartment in the same building.
Frances Jimenez, who lived at 1936 South Carpenter Street, testified she heard the defendant's voice between 1:00 and 1:30 A.M., saying, "I could shoot you and say it was in my house." She heard three shots, and when she looked out the window she saw Anibal standing in the street saying, "I have the gun," and she saw the defendant getting up from the street. Anibal walked backwards from the defendant and then ran from the scene. Then she saw two men she could not identify pick up the body and drag it closer to the home of the defendant at his direction.
Miguel Cabrera testified he played dominoes with the defendant and the Torres brothers on the night of September 10, 1970, but left at about 10:00 P.M.
• 1, 2 The defendant first complains he was prejudiced by the prosecution's reference to the Torres brothers as "boys," by referring to the deceased as a "victim," and by the questioning of the deceased's widow about her children. Upon reviewing the record we conclude these were not material factors in the trial. There was just one mention of the word "victim," and it was objected to, the objection was sustained and never mentioned again. The reference to the brothers as "boys" is understandable in the context that the defendant is 47, while the Torres brothers were 22 and 21 years of age. They had achieved majority but were young in comparison with the defendant.
The mention of the deceased's family occurred in the following manner:
"Q. Would you state your ...