APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
STENGEL, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
The defendant, Antonio DeHoyos, was indicted for the murder of Jose Pallares, and a jury found him guilty of involuntary manslaughter (Ill. Rev. Stat. 1971, ch. 38, pars. 911, 9-1(a-2), 9-3(a)). The court sentenced defendant to serve a term of 3 to 9 years in the State penitentiary. Defendant appeals. We reverse and remand for a new trial.
The deceased, Jose Pallares, died of a gunshot wound in his head on September 20, 1972. He had arrived at the home of his aunt, Mary Sanchez, at approximately 10 p.m., on September 19, 1972. Four hours later the defendant arrived, carrying a pistol in a brown paper bag. Ricardo Sanchez, Pallares, and the defendant sat on a couch in the living room, where three younger brothers of Ricardo were asleep on the floor. Their mother, Mary Sanchez, was asleep in a bedroom. James Sanchez, after allowing defendant to enter the apartment, went into another room to watch television.
Ricardo Sanchez testified that he saw the defendant take a pistol from the brown bag he was carrying. While sitting on the couch with Pallares and Sanchez, the defendant removed three cartridges from the weapon, replaced one in the chamber, spun it and put the gun to his head and "clicked it." The gun did not fire. He then pointed it at Ricardo who jumped off the couch and told the defendant not to "fool around." The defendant then pointed the gun at Pallares. Sanchez pulled a blanket over his head and heard the gun "click twice." As he was pulling the blanket off he heard the third click and a gunshot. With the blanket still over his eyes he saw a "flash," and when he pulled the blanket completely off his head he saw the defendant with the gun in his hand. Sanchez was standing 2 or 3 feet from the couch at the time the shot was fired. He testified that he never saw anyone other than the defendant holding the gun that evening.
Mary Sanchez testified that when she heard the gunshot she rushed into the living room and saw the deceased on the floor and the gun in the defendant's hand. She stated that Ricardo Sanchez and the defendant said the deceased had shot himself. When the defendant announced that he was going to leave, she told him to wait for the police. He said the gun was not his but belonged to the government, and told her to tell the police that the deceased was shot through the window. He then left the building.
The defendant testified that he had purchased the weapon a few days before the incident to protect his mother and that he carried it with him at all times. He stated that after he arrived at the apartment, Pallares asked to see the contents of the bag, and he handed the pistol to him. Sanchez got up from the couch and stood by the television set. Pallares began to pull the hammer of the pistol back and let it go. The defendant told him not to play with the gun, and he grabbed the gun, first with one hand, then both hands, in an attempt to take it away from Pallares. The gun discharged, hitting Pallares. Defendant stated that he could not remember telling Mrs. Sanchez to tell the police the deceased was shot through the window, but admitted that it was possible he had said it.
The defendant further testified at trial that after leaving the Sanchez apartment he threw the gun into a nearby vacant lot. He returned soon afterwards, retrieved the gun and took it to the home of Richard Bondie where he left it. As he and Bondie left the house they were approached by police and defendant fled, going to his sister's home, then to the home of Frank Rogers where he stayed until his arrest.
Defendant testified that Ricardo Sanchez was in the living room at the time of the shooting but he did not know what Sanchez had witnessed. He explained that he threw the gun inside a "knocked-down house" in a prairie, retrieved it and took it to Bondie's home. On cross-examination, the prosecution sought to impeach defendant's testimony on that point by reading into the record the testimony at the preliminary hearing where defendant testified that he threw the gun into a knocked-down house, but made no mention of retrieving it and taking it to Bondie's home. The preliminary hearing was held before the gun was brought to the police by Bondie's mother.
Richard Bondie testified that defendant had come to his house soon after the incident and told him that he and Pallares were pulling on his gun and it accidentally fired. Bondie volunteered to hide the weapon. It was later found by Bondie's mother and she surrendered it to the investigating officer on October 22, 1972.
At the trial Ricardo Sanchez denied telling his mother that Pallares had shot himself. He admitted that on the evening of the incident he made an unsworn statement to the police in which he stated that he had been in the bathroom and heard the shot as he came out. He testified that the prior statement was not true, and that he had lied because he feared possible reprisals by defendant's friends. He further testified that after the weapon discharged he heard defendant say "I didn't know it was going off."
The defense rested, and the prosecution called in rebuttal a firearms identification technician employed by the Chicago Police Department, who testified that he had examined and tested the weapon and bullet involved in the case. He stated that the gun had a double-action pull (pulling the trigger to activate the hammer) of 9 1/2 pounds and a single-action pull (pulling the trigger when the hammer had already been cocked) of 3 1/2 pounds. The pull here was greater on this firearm (a .38-calibre Smith & Wesson military police model revolver) than on a target pistol. He further stated that the gun could not be fired without the trigger being pulled, and if an individual had both hands wrapped tightly around the cylinder the gun could not be fired.
An investigating police officer testified for the prosecution on rebuttal that he had examined the body of the deceased at South Chicago Hospital and found no powder burns on it. He acknowledged, however, that either the body or the wound could have been washed prior to his inspection.
During the prosecution's rebuttal the defense was permitted to reopen its case for the limited purpose of securing the testimony of Augustine Sanchez, brother of Ricardo. Augustine testified that he was asleep on the living room floor; that he heard the shot and, having awakened, saw the gun lying on the end table. The defendant was standing near a dresser and said the deceased had shot himself. The witness further testified that he heard his brother Ricardo state that he was in the bathroom at the time the gun discharged.
The defense attempted to introduce into evidence the statement made by Ricardo on the evening of the shooting. The court, stating that it had allowed the defense to reopen its case for the limited purpose previously described, denied the defense's motion.
The last witness in rebuttal for the prosecution was Frank Rogers. He testified that the defendant stayed at his house after the shooting. However, he denied knowing that defendant was there and denied speaking to defendant's mother when defendant was there. Rogers was asked if he had ever been convicted of a crime, and over objection by defense counsel, responded that he had been convicted for the sale of narcotics and had served the entire sentence of 10 years and 1 day. During the defense testimony defendant testified that he was permitted to stay at Rogers' house from September 20 to September 22, 1972, ...