APPEAL from the Circuit Court of Cook County; the Hon. FRANK
J. WILSON, Judge, presiding.
MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT:
The defendant, Perry Saunders, was tried without a jury and found guilty of murdering David Watts and Dinard Watts. He was sentenced to the penitentiary to a term not less than 30 nor more than 90 years for each homicide. At his trial Saunders admitted killing the Watts brothers but pleaded self-defense. On appeal he contends that the State failed to prove beyond a reasonable doubt that he was not acting in self-defense, that evidence was improperly excluded concerning his state of mind, and that at the most he committed voluntary manslaughter, not murder.
The double killing occurred about 9 P.M. on August 26, 1971, in the apartment of Annie Long at 6314 South Ellis Avenue, Chicago. People gathered in the apartment during the afternoon and evening, drinking, playing cards and rolling dice. Saunders and the Watts brothers were among them. There had been an argument between Saunders and David Watts on August 4, 1971. Two days later Saunders was shot in the back and he suspected that one of the brothers had done the shooting. However, they drank and shot craps together on August 26 and there were no words between them.
In one of the dice games, James Rush told the other players that he was taking house cuts for Annie Long. David Watts argued about paying the cut and threatened to kill Rush. The argument was settled and the two men left the apartment and went around the corner to have a drink. Later, Saunders also left. He and James Rush returned to the apartment about 9 P.M., went into the kitchen and resumed their drinking. Ten or fifteen minutes later, David and his brother returned.
Saunders testified that he was sitting on a stool in the kitchen when he heard some sounds in the hallway. He looked up and saw David and his brother coming down the hallway "kind of fast" and saw a gun in David's hand. He said that he thought they were coming to kill him so he pulled a gun from his belt and started firing. David and Dinard Watts fell to the floor. Saunders kept firing until his gun was empty. He then reloaded and started for the front door. He said that as he was going out he saw David rise up; he shot him again, took the gun from David's hand and went home.
The police went to his home that night and asked for him and Rush. Saunders' wife said neither one was there. The police instructed her to tell her husband to get in touch with them. He did not do so. He and Rush were arrested the next day by two policemen who were riding in an unmarked squad car. They were charged with murder.
They were tried together. At the conclusion of the State's evidence, the trial court granted Rush's motion for a finding of not guilty. Rush was called as a defense witness. He testified that David Watts was armed. He said he saw David take a pistol from his pocket earlier in the day and that it was raised in his hand that night when he ran down the hallway toward the kitchen. Rush testified that he turned his back until the volley of shots was over. He said that Saunders re-loaded his gun; that David, who was on the floor, raised his, and Saunders shot him again. Rush said that Saunders took the gun from David's hand, but he was not sure whether Saunders did this before or after shooting David a second time.
Joyce Griffin, Annie Long's daughter, testified for the defendant. She said that as she was leaving the apartment about a quarter to 9, she saw David and Dinard Watts standing at the front door and heard Dinard say, "[G]et your gun man, get your gun out."
Another defense witness was Evelyn Williams, who testified that she was playing cards when the shooting took place. She took refuge under the card table and when the shooting ended went out the back door. She said that as she passed David's body, she saw a gun in his hand.
Rogers Hall was playing cards in the living room at the time Saunders and Rush, and David and Dinard Watts re-entered the apartment. He testified that the latter two said hello to everyone and were laughing and talking as they walked toward the kitchen. About the time they reached the kitchen, Hall heard rapid firing. He thought there were six shots, probably more. He and his fellow card-players went underneath the card table. When he got up, Saunders and Rush came into the room. He saw a pistol in Saunders' hand and heard one of the men say, "[G]et out of here and don't say nothing." Hall testified that Dinard's body was in the hallway and no weapons were around it. David's body was in the kitchen near the back door. There were no weapons near it. The only weapon Hall saw in the apartment that night was the one in Saunder's hand.
A pathologist for the Coroner of Cook County examined the bodies. He testified that David's body had five bullets in it, Dinard's three. One bullet had entered the top of David's head, one his back and another the side of his chest toward the back. A fourth bullet had entered his chest and a fifth had entered the chest and went sharply downward. Based on the paths of two of these bullets, the pathologist was of the opinion that the barrel of the gun that fired the shots was above the head of the victim.
During his testimony Saunders related that 22 days before he killed the Watts brothers he had a mild argument with David Watts in which David said he was lucky to be in the neighborhood, because if David did not want him around he would not be. His attorney asked him what he took this statement to mean. An objection was made and sustained. Two days after the argument he was shot twice in the back shoulder. Later he was present when Dinard said to a third person, "You all think you're smart. We done got one of them." His attorney again asked what he took this to mean. In sustaining an objection the court said, "I will let what was said in, not what he's thinking." The exclusion of the defendant's thoughts on these two occasions is claimed to be reversible error.
• 1, 2 The case was tried without a jury, and the court's rulings are said to indicate that the court was not concerned with what the defendant thought and, therefore, would not consider his mental state at the time he shot the Watts brothers. This objection is farfetched. The crucial issue in a self-defense case is not what the accused may have thought 10 to 20 days before the homicide, but what was in his mind at that time. Saunders was permitted to testify freely about his thoughts, his fears and the reasons for them at the time the brothers were in the hallway. He said he saw a pistol in David's hand, thought they were going to kill him or try to kill him, so he pulled out his gun and started firing. He said he fired the weapon because Dinard had told him one of them had shot him and he was scared one of them was going to kill him. He was permitted to relate prior incidents, quarrels and threats which were pertinent to his plea of self-defense. The exclusion of his mental impressions at the time the earlier statements were made to him or overheard by him, did not prejudice him and was not error. The disallowance of this testimony did not indicate that the court had closed its mind to the defendant's pertinent testimony.
• 3, 4 A person who kills a human being without lawful justification commits murder if he either intends or does great bodily harm to that person. (Ill. Rev. Stat. 1969, ch. 38, par. 9-1(1).) An intent to kill does not necessarily constitute an intent to murder; a person may intentionally kill if the killing is in self-defense, and not be guilty of murder. But the use of force intended or likely to cause death is justified only when the person reasonably believes that such force is necessary to prevent imminent death ...