APPEAL from the Circuit Court of Cook County; the Hon. EARL E.
STRAYHORN, Judge, presiding.
MR. JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT:
The defendant-appellant was indicted for murder and in a bench trial in which all the evidence was stipulated defendant was found guilty of the lesser included offense of voluntary manslaughter. A sentence of a minimum of 5 years and a maximum of 15 years in the Illinois State Penitentiary was imposed. In this appeal defendant maintains that the stipulated bench trial was tantamount to a plea of guilty and therefore, it was necessary to admonish him in accordance with Supreme Court Rule 402 (Ill. Rev. Stat. 1973, ch. 110A, par. 402). Defendant also contends that the stipulated evidence was insufficient to establish the offense of voluntary manslaughter beyond a reasonable doubt. We do not agree with either of these contentions.
On November 21, 1972, defendant's case was before the trial court and defense counsel requested a conference so that "we might be able to dispose of the matter." The trial court before granting the request fully informed defendant of what would occur at such a conference and inquired whether defendant agreed to permitting his attorney to confer with the State and the court regarding his case. Defendant responded affirmatively. A partial conference was held and the record indicates the conference was to be continued to December 15, 1972. However, defense counsel informed the court that there would be no purpose in continuing the conference because the defendant had indicated the results of the conference were unsatisfactory. Defense counsel then requested that the case be set for jury trial and the case was set for trial on December 14, 1972.
On December 14, 1972, defendant's attorney made a motion to dismiss the indictment which was denied. Defendant on his own made a motion to have a bar association lawyer assigned to his case, and this motion was also denied. The case was continued to January 31, 1973.
When the defendant's case was called on January 31, defense counsel informed the court that the defendant had decided to accept the results of the conference. The court could not remember what those results were and the case was temporarily passed. When it was called again, the court stated to defendant, "Your attorney has stated that you wish to plead not guilty, and waive your right to trial by jury, is that what you wish to do?" Defendant responded, "Yes." The court then admonished defendant as to his constitutional right to a jury trial, but defendant stated he wanted to be tried by the court without a jury. A written jury waiver was signed by defendant. After defendant waived his right to a jury trial the following colloquy occurred between the court and defendant.
"THE COURT: On December 14, 1972, you agreed that your counsel, Mr. Lincoln, would confer with the Court regarding the disposition of your case. That conference was held, and after an examination of all the facts in the case, the Court advised the parties that if the facts were as were disclosed to the Court in the conference, the Court would enter a finding of guilty as to voluntary manslaughter, and impose a sentence on you in the Illinois State Penitentiary for a minimum of five years, and a maximum not to exceed 15 years.
Your counsel at that time stated that he was willing and agreeable to stipulating to the fact in open court, that had been disclosed to the Court off the record, in chambers, and presenting a case to the court on what is called a stipulation as to the facts. That is, none of the witnesses will be present here, who would testify, as it is being stipulated that they would testify, and based upon that stipulation, that stipulated statement of the evidence, the Court would enter the order that the Court said he would enter, if those were the stipulated facts, and if those were the facts that were presented to the Court on a plea of not guilty.
My next question to you is, are you willing that your attorney, Mr. Lincoln, proceed in that fashion, and have the matter disposed of on your plea of not guilty by a stipulation as to the facts; are you willing that he proceed in that fashion?
THE COURT: Very well. Plea of not guilty, jury waived. What are the stipulated facts, Mr. State's Attorney?"
The stipulation of facts reveals that Mrs. Muse, the wife of the victim, Samuel Muse, would have testified that on February 18, 1972, at approximately 12:30 A.M., her husband was in the community kitchen adjoining their apartment frying fish. The defendant entered the apartment and remarked to the victim, "I smell sardines." Mr. Muse replied he was frying fish and the defendant stated, "Kiss my ass." The two men began pushing each other and Mrs. Muse came out of her bedroom and told them not to fight. Mr. Muse went into the bedroom for about 15 minutes and told his wife he was not going to be stopped from frying fish by the defendant. He returned to the kitchen and the defendant, who apparently overheard Mr. Muse's remark, told Mr. Muse, "Little Nigger, what did you say?" Defendant then shoved Mr. Muse to a table, pulled a gun and fired several shots at him. Mrs. Muse observed these events as she was standing in the bedroom doorway.
It was also stipulated that Dr. Edward Shalgos, a Cook County coroner's pathologist, would testify that the cause of death was a bullet wound to the arm and chest, namely, the lungs, heart, pulmonary arteries and aorta.
It was also stipulated that if Detective James Boyle of the Chicago Police Department were called as a witness, he would testify that he was the investigating officer in this case and that he was sent to Philadelphia, Pennsylvania, to arrest the defendant. On March 29, 1972, Detective Boyle and Lieutenant Martin of the Philadelphia Police Department arrested defendant. After defendant was advised of his rights, he admitted shooting Mr. Muse. Defendant's age and the facts establishing venue were also stipulated.
Defense counsel requested that a stipulation be entered as to what the defendant would testify to if called on his own behalf. It was stipulated that "he would testify that he talked to the victim in the kitchen, that the victim started accusing the defendant of messing with the victim's wife, and the victim appeared intoxicated, and that before the shooting, the victim threw a skillet at the defendant, full of hot grease. The defendant ducked and the skillet hit the floor. The victim then picked up a knife and threatened the defendant, and that it was then that the defendant shot the ...