APPEAL from the Circuit Court of Cook County; the Hon. LOUIS
B. GARIPPO, Judge, presiding.
MR. PRESIDING JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:
Defendant was indicted for the murder of his wife, Bernadine Smith. After a bench trial, he was found guilty of voluntary manslaughter (Ill. Rev. Stat. 1969, ch. 38, par. 9-2) *fn1 and sentenced to three to 12 years.
On appeal defendant contends that he was not found guilty of voluntary manslaughter beyond a reasonable doubt, and that he did not receive effective assistance of counsel.
Jacqueline Perry, age nine, testified for the State as follows: On February 11, 1972, the date of the incident in question, she lived with her parents in apartment 5-E, 840 West Sunnyside, Chicago, Illinois. Her aunt, Bernadine Smith, lived in apartment 19-D of the same building. Around supper time Bernadine and her children were visiting Jacqueline's parents in their apartment when Jacqueline was given the key to Bernadine's apartment and told to get some corn. Jacqueline went to the apartment but got the wrong kind of corn and so returned to Bernadine's apartment to get some corn on the cob.
Jacqueline further testified that while she was in Bernadine's apartment she heard a knock and that her uncle, the defendant, was at the door. Defendant asked Jacqueline where his wife was and she told him Bernadine was downstairs at her house. Defendant then went into the front room, got a gun and loaded it with two bullets. The witness had seen the gun before when Bernadine had put it under her mattress. Defendant placed the gun in his right coat pocket and with Jacqueline took the elevator down to Jacqueline's apartment. When they arrived at Jacqueline's apartment, the defendant told his wife "come on" and the defendant, Bernadine and their children left the apartment. Jacqueline said something to her mother about seeing the defendant with the gun but her mother paid no attention to her.
Police Officer Gary Lapidus testified that he investigated the shooting at 840 West Sunnyside at about 7:30 P.M. on February 11, 1972, and at that time the defendant told him that he was cleaning his revolver with a handkerchief when he accidentally shot his wife. The witness further stated that he examined the gun and found two shells in the chamber; one was expended and one was live; and that one shot had been fired from the weapon.
Police Officer Thomas Skeely testified that he interviewed the defendant at the 20th District Police Station on February 11, 1972. Defendant told the witness that after arriving in his apartment he turned on the television for the children and sat down with them on the couch, after which he then went into his bedroom and took a gun from underneath the mattress and brought it back to the living room. Defendant sat on the couch, took out his handkerchief and started dusting the gun when the gun discharged and struck his wife. The witness asked defendant if he kept the gun loaded, and defendant answered he always kept two rounds in it.
Ernst Warner, of the Crime Laboratory, testified that defendant's gun was a .32 Colt new police caliber, "Colt detective special revolver." He stated that if the weapon is cocked, the trigger must be pushed to the rear if it is to be fired; that firing the weapon cocked there is a four pound trigger pull and that when the weapon is fired uncocked, there is a ten and one-half pound trigger pull.
Johnny Ray Williams, Bernardine's brother, testified that around Christmas 1971 he saw the defendant with a gun while he was in defendant's apartment and that defendant told Bernadine, "Bitch, I kill you." Defendant was holding the gun in his hand and was pointing it at Bernadine when the witness told defendant, "put the gun down, you know you got to get along."
Defendant did not present any evidence.
Defendant argues that the judgment of the trial court must be reversed because the defendant was not found guilty of voluntary manslaughter beyond a reasonable doubt.
• 1 The State admits that it "has scrutinized the record and has been unable to find any evidence from which an inference of provocation can be adduced." Therefore, in light of this court's holding in People v. Thompson, 11 Ill. App.3d 752, 297 N.E.2d 592, the State confesses error as to the defendant's conviction for voluntary manslaughter. We have examined the record and agree that there is no evidence to support a conviction for voluntary manslaughter. Therefore, the judgment appealed from must be reversed.
Although the State admits the judgment for voluntary manslaughter must be reversed, it argues that the evidence proved the defendant guilty of involuntary manslaughter beyond a reasonable doubt and, therefore, requests this court to exercise its broad discretion provided for in Illinois Supreme Court Rule 615(b) and enter an order finding the defendant guilty of involuntary manslaughter. It contends that from the fact of Bernadine's death it can be inferred that defendant pointed a loaded gun at his wife, and in the presence ...