APPEAL from the Circuit Court of Cook County; the Hon. GEORGE
E. DOLEZAL, Judge, presiding.
MR. PRESIDING JUSTICE BARRETT DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 23, 1975.
Defendant was charged with the murder of Harold Davis (Ill. Rev. Stat. 1967, ch. 38, par. 9-1), and was found guilty by a jury of involuntary manslaughter (Ill. Rev. Stat. 1971, ch. 38, par. 9-3).
On appeal defendant contends that (1) he was denied due process of law by the giving of instructions to the jury on the charges of voluntary manslaughter and involuntary manslaughter, and (2) the evidence at trial did not establish the elements of involuntary manslaughter.
At trial, the State called over 20 witnesses. Although their testimony differed in certain details, the witnesses testified to some or all of the following.
Some time around midnight on October 15, 1968, two black males perpetrated the armed robbery of a neighborhood tavern. As the robbers started out the door, Art Pauly, one of the patrons, struggled with them and was shot in the neck. The tavern owner and a patron or two pursued the robbers but were unable to capture them, even with the assistance of a police patrol car that had stopped to assist. When they returned to the tavern, the area surrounding it was crowded with police and civilians. While they were away, the bartender had called the police, who took him for a 10- to 20-minute search of the area that proved fruitless.
Shortly after midnight on the day in question, Richard Owens, Ronald Owens, and Harold Davis were talking on a street-corner. Defendant's car approached them and stopped. Defendant, a Chicago police officer who was not assigned to a shift at that hour, exited with a gun and told the three to get up against a nearby wall, where they were searched. Robert Walker and Richard Owens' brother, Gregory, approached the scene and were ordered to stand against the wall with the others. Defendant then directed the five black males into his car. He drove them to the tavern while Art Pauly, who had accompanied defendant, held a gun on them.
When they arrived at the tavern there were many people in the area, including several uniformed police officers, as well as several marked police cars. Defendant stated that he had the robbers. He went into the tavern and returned with the bartender and perhaps a few patrons. Defendant ordered the five men out of his car and asked whether they were the ones who were involved in the robbery. The bartender said that they were not the ones. No one else gave a positive identification.
According to the testimony of Richard Owens, defendant then came over to him, asked him if he could run, told him to run to an alley, and hit him in the stomach with a gun when he refused. Defendant then, in turn, spoke to Ronald Owens and Robert Walker, and each shook his head and ran west toward an alley. As each ran, defendant fired his gun at him. Then defendant spoke to Harold Davis, who also shook his head and started running. Davis was shot by defendant as he ran.
The wounds to Davis' back caused by this shot were determined to be the cause of his death.
Robert Walker and Ronald Owens recalled the events surrounding the shooting of Harold Davis in a manner similar to Richard Owens. Officer Gary Smith's testimony was also similar, but Officer Smith testified that no shot was fired after the second person ran.
According to Gregory Owens, defendant demanded that his brother, Richard, run. Defendant hit Richard in the stomach when he refused. Defendant then asked Robert Walker to run, and Walker did so. Defendant shot at Walker with his arm "elevated upwards." He then told Ronald Owens to run. A uniformed police officer observed that Ronald Owens was a cripple, and defendant did not fire at him.
Officer Raymond Hutton testified that he told the five men to leave the scene. Thereafter, defendant told Ronald Owens to run. As Owens did so, defendant drew his revolver and fired a shot that hit a building. Hutton put his hand on defendant's arm and attempted to push it down, saying, "you shouldn't fire a gun at anybody right now, not right now." Hutton's partner, Officer David Kelley, corroborated Hutton's testimony in this regard, and Richard Owens testified that Hutton made this statement before, not after, the first shot was fired. According to Hutton, defendant then had another of the five run. After that, defendant told Harold Davis to run. Hutton heard a shot and turned around to see defendant with his .38-caliber snub-nosed revolver in a raised position. Davis had been shot.
Hutton, who had known defendant for 2 years prior to the occurrence, also testified that in his opinion defendant was under the influence of alcohol at the time of the shooting. Several other ...