APPEAL from the Circuit Court of Cook County; the Hon. FRANK
J. WILSON, Judge, presiding.
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:
The defendant, Willie King Horton, was charged by indictment with the murder of his wife, Mae Dell Horton, in violation of section 9-1 (a)(2) of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 9-1(a) (2).) The right to a jury was waived by the defendant and upon trial by the court he was found guilty on April 11, 1973, of the crime of voluntary manslaughter. He was sentenced to serve a term of 4 to 12 years in the penitentiary.
The primary issue presented in defendant's appeal is whether the State proved beyond a reasonable doubt that the defendant was legally sane at the time of the shooting, after the defense had introduced medical evidence placing his sanity in issue. In defendant's reply brief on appeal it is further contended that the manslaughter conviction cannot stand in any event since the evidence proved, if anything, the crime of murder and not manslaughter.
The record shows that after the defendant was arrested and indicted, the court, on October 27, 1971, ordered Doctor Edward Kelleher of the Psychiatric Institute of the Circuit Court of Cook County, or one of his authorized assistants, to examine the defendant as to his mental condition and competency to stand trial. In a letter dated November 3, 1971, addressed to Joseph A. Power, Presiding Judge of the Criminal Division of the Circuit Court of Cook County, and signed by Doctor Richard A. Malek, psychiatrist for the Circuit Court Psychiatric Institute, the court was informed that as a result of an examination the defendant was found not competent to stand trial. Another earlier report, dated October 5, 1971, appears in the record, also identifying Doctor Malek as the examining physician, and describing Willie Horton, as "in need of immediate psychiatric treatment." Defendant was also found incompetent by Doctor Kelleher, on December 20, 1971, and in a competency hearing held on January 24, 1972. In July of 1972, Doctor Kelleher reported to the court, pursuant to order, that the defendant had improved as a result of treatment by the Department of Mental Health and was now able to understand the charges pending against him and cooperate with counsel in his defense. By agreement, evidence was heard by the court and on October 5, 1972, the defendant was ordered competent to stand trial.
The report of proceedings reveals that the trial commenced on March 29, 1973. The defendant was represented by private counsel and waived the right to trial by jury. The court was informed that the defense of insanity was being interposed, and that most of the circumstances of the shooting of defendant's wife were not seriously in dispute.
Herbert Horton, one of the defendant's teen-aged sons, was the State's first witness. He had lived with his father, mother, and eight brothers and sisters in a two-story frame residence on Chicago's south side. He testified that all the children were home late in the evening of September 6, 1971, the night preceding his mother's death. Shortly after midnight, on September 7, 1971, his father, the defendant, Willie King Horton, awoke from sleep and left the house. He returned a few hours later, between 3 and 4 o'clock that same morning, and "started a disturbance, started arguing" with his wife, Mae Dell Horton. He was upset because she had let Herbert and his twin brother stay out until 11 P.M. the night before. After the argument, Mr. Horton left the house with Herbert's younger brother, Herman. Mr. Horton returned at about 8 or 8:30 on the same morning and another argument ensued between him and his wife. He again brought up the fact that Herbert and his brother had been out late the night before. He smelled of alcohol. Herbert heard his father threaten to kill his mother. After the argument had gone on for about an hour, Herbert slipped out of the house to call the police and did so. When Herbert returned. Mr. Horton, ascertaining that the police had been summoned, said "that if they came he would empty the gun into" his wife. After 5 or 10 minutes there was a knock at the front door. Mr. Horton, who was leaning on the side of the refrigerator, went up to the front door, and then came back. When he returned he fired a gun at his wife, and she screamed and fell. Herbert ran out of the back door and encountered a policeman in the gangway. He told the policeman his mother had been shot.
Herbert testified further than his father was self-employed, as a mover and as the owner of a furniture store. He and his brothers helped out, and every now and then his father employed some other men. During the months preceding the shooting, he saw his father every day, and he observed him conducting his business affairs paying bills, moving people, delivering furniture. His father had quarreled with his mother at least five times prior to the day of the shooting. He struck her on one occasion with a chair and on two other occasions with his fist. Herbert had called the police at least five times when his parents were arguing.
On cross-examination Herbert agreed with a characterization of the argument between his parents as "violent." Their hostilities had been building up for some time. His father would get into a rage and lose all control of himself. When asked if he had an opinion as to whether his father was or was not under the influence of liquor on the day of the shooting, he replied, "No, I don't think he was, no." On some of the other occasions when his parents argued he felt his father had been under the influence of alcohol. Although he testified his father had been drinking on the night in question, he didn't feel he had been drinking that heavily. He related that his father had been having some very big financial problems with his business, but there was "[n]othing unusual" about his demeanor, "he just mentioned that he had some problems, that is all." There were no arguments between his parents regarding the business. She did argue that he didn't give her enough money to run the house.
The following colloquy between defense counsel and Herbert Horton occurred near the end of the cross-examination:
"Q. On these occasions, the four or five arguments [in] which you told us that your father struck your mother, once slashed your mother with a knife, also the night that your father shot your mother, do you have an opinion as to whether or not he was acting in a normal manner on those occasions?
A. Yes, sir, normal to him, yes.
Q. Normal to him, but not normal to most people, is that right?
Q. So in other words even prior to September 6, 1971, it was your belief that your father's conduct was abnormal to what most ...