APPEAL from the Circuit Court of Cook County; the Hon. MARVIN
E. ASPEN, Judge, presiding.
MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:
Defendant, Barbara Ann Davis, was charged with the murder of Marvin Adams. After a bench trial, she was found guilty of voluntary manslaughter and sentenced to a term of 3 to 9 years. On appeal, defendant contends that she was not proved guilty beyond a reasonable doubt; that a new trial should have been granted on the ground of newly discovered evidence; and that the sentence was excessive.
Defendant had been living with the decedent and had three children by him. The shooting occurred on July 22, 1972, in a gangway south of the premises at 7224 South Emerald in Chicago.
Herman L. Adams (hereinafter Herman) testified for the State that the decedent, 32 years of age, was his brother. On the afternoon in question, Herman was seated in the front part of an auto repair garage at the back of the premises at 7233 South Halsted Street. The garage was located on the west side of the alley between Halsted and Emerald. Defendant entered the garage at about 3:30 or 4 p.m. The decedent, Jewell Williams, Walter Gadison, and Thomas Sanders also were present. The decedent received a telephone call in the garage, and defendant snatched the telephone and shoved the decedent. The decedent shoved defendant back, and she lost her balance. She fell over a stove and dirtied her clothes. Williams then escorted her home.
Herman further testified that defendant later returned. She was on the east side of the alley with her hands behind her back. She called to the decedent to come out of the garage. Defendant raised her hand and Herman saw that she had a gun. She disregarded Herman's admonition to put the gun away. The decedent walked to the door of the garage, and defendant told him to come with her. Defendant started toward the gangway and the decedent followed her. Defendant and the decedent were about 15 feet apart and defendant had the gun in her hand. After they entered the gangway, Herman could not see them. Herman heard two shots and ran to the gangway entrance. The decedent was on his knees, and had been shot in the chest. Herman did not see defendant after the shooting.
Jewell Williams corroborated Herman's testimony. Williams further testified that when he returned to the garage after escorting defendant home, he warned the decedent that defendant said "she has got something for you." Williams testified that Sanders told the decedent that he better leave because defendant had a gun. Williams heard the defendant, using profanity, call to the decedent. While Williams was trying to get some children out of the alley because defendant had a gun, he saw defendant enter the gangway with the decedent following. Williams lost sight of them. He heard a shot, took two or three steps towards the gangway, and heard a second shot. When Williams entered the gangway, Herman was already beside the decedent. Defendant was gone.
Thomas Sanders, a cousin, testified for defendant. He was present on the afternoon in question and noticed decedent with a bottle of gin in his hand. The decedent appeared to be under the influence of alcohol. Sanders denied that he ever told anyone defendant had a gun. When defendant asked to speak to the decedent, she did not use profane language. Sanders heard Herman advise decedent to beat up the defendant. As decedent left the garage, he told defendant that he was going to beat her. Sanders heard a shot fired and saw defendant with a gun. She went back to the gate of the gangway and the deceased rushed after her. Sanders further testified that when defendant fired the first shot, the gun was pointed in the air. Defendant then placed the gun in her purse. Decedent did not have a gun.
Robin Davis, daughter of defendant and the decedent, testified for defendant. She was 12 years old. About three weeks before the shooting, decedent, while drunk, forced her brother and her to fire shots into the wall at their house.
Michael Wilson, 14 years old at the time of the incident and a cousin of defendant's, testified that he lived with his mother at 7224 South Emerald. On the day of the shooting, defendant arrived at his house in a cab. She asked him to go around to the back with her. Defendant did not enter the alley, but stood at the gate and called the decedent twice. When the decedent came out of the garage, defendant started walking toward him. She took a gun out of her purse and fired a shot in the air. When the shot was fired, decedent paused for a few seconds. Defendant turned around and went back towards the house. The decedent followed her, running fast. Wilson called out a warning to defendant, and heard the decedent say he was going to kill her. Decedent grabbed defendant by the hair, but it was a wig and fell off. The decedent again stated that he was going to kill her, and grabbed her by the collar. Defendant took the gun out of her purse, shot the decedent, and placed the gun back in her purse. The decedent fell and defendant ran to the front of the house.
Defendant testified that she was 27 years of age, and was living with the decedent at the time of the shooting. She had six children, three of them by the decedent.
On the morning in question, the decedent left for work. However his employer would not let him work because he had been drinking. He left the home later with a relative. Defendant left home early in the afternoon and took decedent's gun because when he drank he made the children shoot in the wall or he shot the gun himself. Defendant went to her aunt's house which was across the alley from the repair garage. Defendant went over to talk to the decedent. At the time Williams was talking to someone on the telephone and summoned the decedent. Defendant said she knew Williams was talking to a lady, so she was going back to-her aunt's home to avoid embarrassment. Decedent grabbed her by the arm and stated that he would talk to anyone he wanted. He hung up the telephone and pushed defendant into a heater. The heater fell on her, and her clothes were soiled. The decedent swung at her with a bottle and she hid behind Williams. She asked Williams to take her home, and the decedent warned that Williams was not to be there when he came home.
Williams took her home and said that he would be back in fifteen minutes to pick her up. When he did not return, she took a cab back to her aunt's home. She asked Wilson, her cousin, to accompany her around the back so that she could talk to the decedent. She called the decedent twice, and heard someone in the garage advise the decedent to go out and beat her. Decedent ran out of the garage in an angry manner, so she stepped back and fired the gun in the air. Decedent stopped, and they both stood still for a few moments. Defendant then placed the gun in her purse and turned to return to her aunt's house. When she had traveled part way, her cousin shouted a warning. Defendant looked around just as the decedent snatched her wig and stated that he was going to kill her. He pulled her by the neck and repeated the threat. She took the gun out of her purse and fired. She ran into her aunt's house.
On cross-examination, defendant said she had fought with decedent on prior occasions. He had never threatened to kill her before. She later threw the gun into a garbage can located in a different neighborhood. When she fired the second shot she was frightened but not angry at the decedent.
Defendant initially contends that she was acting reasonably when she shot decedent; that, in effect, she used reasonable force which she reasonably believed was necessary to save herself from imminent death or bodily harm. The People maintain that the proof showed beyond a reasonable doubt that defendant's belief regarding necessity for use of ...