APPEAL from the Circuit Court of Cook County; the Hon. WALTER
P. DAHL, Judge, presiding.
MR. JUSTICE EGAN DELIVERED THE OPINION OF THE COURT:
The interpleader, State Farm Life Insurance Company, issued two life insurance policies totaling $92,422.50 on the life of Jesse Smith. His wife, Rosa Mae Smith (hereafter the defendant), was the primary beneficiary on both policies and their daughter, Yvette Smith and his mother, Everlean Smith, were the contingent beneficiaries on one in the sum of $87,422.50. Jesse Smith died on August 24, 1970, as a result of bullet wounds inflicted by the defendant on July 20, 1970. She later assigned part of her interest in the insurance proceeds to her lawyer, James D. Montgomery. She was charged with murder, but the Grand Jury voted a no bill. State Farm deposited the proceeds with the court, which after a hearing ruled that the defendant had intentionally killed her husband and consequently was not entitled to any insurance proceeds. The court awarded the proceeds of one policy to Yvette Smith and Everlean Smith and of the other to the estate of Jesse Smith.
The defendant first contends that the evidence was insufficient to support the trial court's finding. Since this case hinges on the credibility of the witnesses, it is necessary to summarize their testimony. The defendant testified that she married the deceased in 1964. They had separated intermittently for six months, and she had left him about a month before the shooting. On the morning of July 20, 1970, she left her mother's home for work and while driving was forced to stop by her husband, who was also driving. He entered her car from the driver's side. They sat talking for approximately three hours. He wanted her to come back home but she refused. Each time she refused, he struck her. At times she tried to leave the car from the passenger side, but he grabbed her by the arm and told her that he would not let her get out. They continued talking until she suggested that they get something to eat. While driving to a McDonald's restaurant he never let go of her arm. She testified: "We entered McDonald's and made our purchases." After leaving McDonald's he agreed to take her to work. While driving toward her place of employment, he told her that he had to go home for something. She grabbed the steering wheel whereupon he hit her in the mouth. When the car slowed down for a turn, she swung the door open and tried to jump out, but he was holding her arm. As she came out of the car, he slid out behind her. He beat her about the body, knocked her down and kicked her. She tried to get away by attempting to crawl under the car but he pulled her out from under the car, picked her up by her clothes and struck her head against the roof of the car. He threw her into the back seat of the two-door automobile and drove off; at the same time he kept reaching into the back seat striking her in an attempt to keep her subdued. He told her to stay down or he would kill her. She saw the gun she had in her purse slide back from the front seat. She picked up the gun and fired it, striking him in the head. He turned and grabbed her around the throat with both hands. She fired a second shot, threw the gun on the back seat of the car, pushed the front seat forward and got out of the car. As she left, the car was still in motion and she fell when she got out. She ran to her cousin's apartment where she called the police.
The gun was her husband's and she had placed it in her purse the day before the shooting. She had seen him the day before the shooting as she came out of her mother's house accompanied by her father. An argument arose between her and her husband, and he struck her. It was sometime after this incident that she placed the gun in her purse.
While in police custody the day of the shooting, she was sore all over her body and noticed fingernail marks or handprints on her throat. Her skirt and blouse were dirty and she noticed that the collar on her blouse was torn when the police were taking her picture. She denied telling one of the police officers that she put the gun in her purse that morning because she was tired of him "messing on her." She also testified that she had blood in her mouth, which was swollen, and that Jesse had struck her at least eight times during the initial three-hour conversation that morning.
James Allen testified on behalf of the defendant that he was on the southeast corner of Kostner and Washington on July 20 and that he saw a man he later identified as Jesse Smith leave a car, come around to the passenger side and pull a woman out of the car. The man struck the woman in the head with his fists or hands, knocking her down a couple of times. The woman, he later identified as the defendant, tried to get away by crawling under the car but was pulled back out by the man who started bouncing her head on the car. The man then threw her into the back of the car and drove off. Allen continued cleaning some bricks which he was taking from a razed building until he heard police sirens. He got into his car and followed a police car to see what happened. At the scene of the shooting, he recognized the man in the ambulance as the man who had beaten the woman. He spoke to an officer at the scene who told him to go to the Damen Avenue Police Station. He went to the hospital and spoke to a policeman.
The defendant's sister testified she observed bruises on the defendant's shoulder and arm and scratch marks on her neck. She also saw that the defendant's blouse was torn. The next day she took the defendant to the hospital where the defendant received medication to calm her down.
Officer Richard Hoffman testified on behalf of the contingent beneficiaries that he and his partner, Officer Raymond Adams, arrested the defendant approximately one-half hour after they first arrived at the scene of the shooting. He found the gun on the back seat of the vehicle along with a purse and shopping bag. The defendant was crying and approaching hysteria but calmed down somewhat after they left the hospital. At the station she said that she met her husband on her way to work and spent most of the morning talking about their marriage. She did not give any reasons for the shooting. Hoffman did not see any marks or bruises on her nor did he see James Allen at the scene.
Officer Raymond Adams testified that the vehicle that Jesse Smith had been driving left skidmarks of 6 to 10 feet. While Officer Hoffman and others were coming in and going out, he questioned the defendant, who told him: "It's his gun. I took it with me this morning because I was sick of him messing on me." He noticed no rips or tears in her clothing and saw no dirt on her blouse other than some dirt around the cuffs. He saw her wipe her face and eyes with the cuffs on her blouse but did not see any black eyes, bruises, markings or bleeding. He was present when the defendant told an investigator that she was beaten by her husband before the shooting. He saw what appeared to be make-up on her sleeves, her shoulder and possibly on her shirt tail and saw her wipe her nose, eyes and face with her blouse while in the office being questioned.
George Stewart testified for the contingent beneficiaries that he was in Gloria Richards' apartment near the scene of the shooting when he heard a shot. He saw a car going down the street with a man in the driver's seat leaning over the steering wheel. The car struck a parked car. He went down the stairs where he saw a woman backing out of the right-hand car door with a gun in her hand. He heard a second shot as he saw the woman backing out. She had come from the back seat of the car. She then threw the gun in the back of the car and ran down the street. When the police arrived, he did not tell them what he had seen. His friend, Gloria Richards, received a subpoena for a criminal matter involving the shooting, and he decided to go with her to tell what he had seen. Before his decision to relate what he had seen in the criminal proceedings, he was visited by Thomas Smith, the brother of the deceased. Thomas Smith told him that Jesse had died some 4 or 5 weeks after the shooting and asked if he knew anybody in the area who had observed it. Stewart said that he had seen what happened but that he wanted nothing to do with it. It was sometime after this discussion that Stewart decided to go with Gloria Richards, who had been subpoenaed. He said he felt sympathetic toward Thomas Smith because his brother had died.
Investigator John Leonard testified that the defendant told him that she had possession of the gun for approximately four months before the shooting. He did not recall seeing any marks or bruises on her at the time he questioned her. She said Jesse told her he was going to drive her to work but later refused; and that Jesse got out of the car and beat her when she attempted to leave. He talked to a Mr. James Allen who came to the 15th District Station as a witness to some part of the incident and reported the substance of what Allen had said.
The defendant has cited a number of cases dealing with the general law of self-defense, and she relies principally on People v. McGraw, 13 Ill.2d 249, 149 N.E.2d 100. In McGraw, a police officer, who was armed, was involved in a minor traffic collision with the unarmed defendant. The police officer struck the defendant a number of times and later put his gun in his car where the defendant retrieved it. The police officer started toward the defendant, who fired several shots, killing him. The Supreme Court reversed the murder conviction stating (13 Ill.2d at 253):
"There is no question but that the deceased was the aggressor. All eyewitnesses, both for the prosecution and the defense, testified without exception that Roushorn struck all the blows, that the defendant offered no resistance at any time and that his first aggressive act was the procurement of the gun."
The quoted language from McGraw pinpoints the issue in this case: Is there any question "but that the deceased was the aggressor"? Put another way, could the factfinder have concluded that the defendant did not reasonably believe that the shooting was necessary to prevent death or great bodily harm? If the trial court was bound to accept the defendant's version as true, then the defendant's contention is correct. But the law is clear that the judge was not compelled to accept the accounts of the defendant or her witnesses but could properly consider the surrounding circumstances and the ...