APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR
L. DUNNE, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Defendant was convicted, after a jury trial, on two counts of aggravated battery upon Judith Dingillo; first, a battery causing great bodily harm; and second, a battery with a deadly weapon (Ill. Rev. Stat. 1969, ch. 38, par. 12-4). The court denied probation and sentenced defendant to a term of 18 months to 5 years. On appeal, defendant contends:
(1) the court erred in failing to instruct the jury as requested by defendant on the lesser included offense of reckless conduct;
(2) the court erred in excluding evidence of defendant's state of mind;
(3) the court erred in allowing testimony of a police officer on rebuttal as to the force required to fire the gun;
(4) the prosecutor's conduct amounted to reversible error;
(5) defendant was not proved guilty beyond a reasonable doubt; and
(6) the trial court erred in denying probation.
On June 24, 1971, the victim, Judith Dingillo, suffered injuries as a result of a gunshot wound inflicted by the defendant. The facts and circumstances surrounding this incident which are not disputed on appeal are as follows:
Earlier on the above date, Frank Melecio slapped defendant's younger brother in the presence of several youths. Upon defendant's return from work that evening, he was informed of the incident. He armed himself with a .22-caliber automatic pistol he had purchased from a friend a week or so earlier, then placed the gun in the waistband of his trousers and "went looking" for the person who hit his brother. About 10:30 that evening, defendant and three other youths approached the house where the victim and Frank Melecio were sitting on the porch. When he saw the defendant, Melecio ran to the sidewalk and threw a bottle toward him. The gun held by defendant discharged, hitting the girl in the chest. Defendant fled around the corner and the gun again discharged, inflicting a wound in his right leg. He gave the gun to Michael Koons for safekeeping. Koons and the defendant ran away from the scene.
The facts surrounding the first discharge of the gun are greatly disputed. The victim, testifying for the State, said she did not see the bottle strike anyone. She further testified that she saw a man kneeling or crouching on the corner of Lyndale and Kimball Streets, with a gun in his hand. She identified the defendant as that person. She heard the bottle break a couple of seconds before she was shot in the chest.
Michael Koons, testifying for the State, stated that a group of youths accompanied defendant to Lyndale and Kimball. Four persons, including the defendant and Koons, turned the corner toward a building where Melecio was sitting on the porch. Defendant preceded the other three, and someone said, "I want to talk to you." Then the person came off the porch, picked up a bottle and threw it at the defendant. Koons saw the bottle being thrown and, with the others, turned and ran in the other direction as the bottle broke. He did not see defendant get struck with the bottle. He heard a gunshot. He saw no weapon in defendant's hands on the street or while defendant ran around the corner and caught up to him, running west on Lyndale. Koons then heard another gunshot, and he and the defendant kept going. About a half block later, defendant stopped, took his hand out of his pocket and said, "I just shot myself." Defendant took a gun from his waistband, handed it to Koons and asked him to take it home, which he did. Koons gave the gun to the police the next day. He further testified to a conversation he had with the defendant some 3 months after the shooting, when defendant told him "he took a shot and didn't know who he hit, or what." Defendant never told him the gun went off accidentally. On cross-examination, Koons testified concerning that conversation, saying that defendant never said he intentionally fired at anyone.
Defendant testified in his own behalf. When he arrived home from work at about 10:15 P.M., he was told that his brother had been beaten by a man. He went to his garage and took the gun; being left-handed, he placed the gun in the waistband on the right side of his pants. He knew it was loaded, but did not know that there was a shell in the chamber. He did not know if the gun was cocked, and did not cock it. He did not know how to operate the gun and had never fired it before. One of the boys told him that Frank Melecio and Judy were sitting on a porch, and several boys accompanied him to the address. They had not reached the porch when Frank jumped up and threw a bottle at them. Defendant testified that he put up his shoulder to shield himself from the bottle, and as he did, the gun came out of the waistband of his pants and went off. He had the finger of his left hand "by, but not on the trigger." He did not kneel and take aim with the gun in his hand. He started to run because he saw the victim, Judy, and Frank running toward him. He proceeded a short distance when the gun which he had put back in his waistband began to fall. He pulled it up and it went off again. He continued running until he realized he had shot himself. He then gave the gun to Koons and went home.
Harry Thieben testified for the defense that he informed defendant of the incident involving his brother Patrick's being hit by Melecio; that defendant told the witness and the other young men present that he wanted to go find out why Melecio had hit his brother. Four boys accompanied defendant to the vicinity of the victim's home when the witness saw Melecio jump off the porch and throw a bottle. The witness stated that the bottle first struck the defendant, ...