APPEAL from the Circuit Court of Cook County; the Hon. DANIEL
J. RYAN, Judge, presiding.
MR. JUSTICE BARRETT DELIVERED THE OPINION OF THE COURT:
Defendant was indicted for the crime of murder. (Ill. Rev. Stat. 1965, ch. 38, par. 9-1.) Following a bench trial, defendant was found guilty and sentenced to a term of not less than 50 nor more than 75 years in the Illinois State Penitentiary.
On November 30, 1973, this court dismissed defendant's appeal pursuant to Supreme Court Rule 606(a) and (b) (Ill. Rev. Stat. 1971, ch. 110A, par. 606), for failure to file a timely notice of appeal. (People v. Williams, 16 Ill. App.3d 111, 305 N.E.2d 583.) On November 27, 1974, our Supreme Court reversed and remanded the instant case to this court with directions to consider the appeal on its merits. People v. Williams, 59 Ill.2d 243, 320 N.E.2d 13.
On appeal, defendant raises only one issue for this court's consideration: whether the references of a medical expert for the State to a toxicologist's report upon which the expert based his opinion that the deceased died as a result of asphyxiation, and not as the result of stab wounds, prejudiced defendant's case, was inadmissible hearsay, and denied defendant his right of confrontation.
Because the Supreme Court remanded this cause to this court with directions to consider the appeal on its merits and because the trial evidence was not a part of either of the above opinions, we deem it advisable to consider all of the evidence in this opinion.
The testimony at trial disclosed the following occurrences.
John Matunas, a police officer for the City of Chicago, testified that on March 11, 1967, while on duty, he observed a vehicle parked near 130th and the Calumet Expressway in Chicago; that upon approaching the vehicle and opening the driver's door, he found a person sitting behind the wheel. The automobile was burned inside and the occupant appeared to be dead. A two-gallon can containing some gasoline was removed from the back seat and taken to the crime lab. He also removed certain garments worn by the victim. On cross-examination, Officer Matunas testified that the temperature was very cold outside and that there were tire ruts at least two or three inches deep which were frozen solid. He stated that he observed an unsmoked cigarette and a burned match in the left-hand corner of the floor, as well as an unlit book of matches in the back seat of the vehicle. He identified a black and white checkered sport coat and an outer coat and stated that neither garment possessed any punctures, holes or slashes in the left front portion. He testified that upon opening the automobile door there was excessive heat in its interior, and that upon removing the deceased from the vehicle he observed that he was severely burned. On redirect examination, the witness stated that the odor he smelled in the can obtained was gasoline and that a sweater removed from the victim contained approximately seven puncture or tear marks.
L.G. Gamble testifying for the State stated that Arthur Pearson, the victim found in the automobile, was his cousin, and that he, Pearson, and Joe Lewis, were together on the late evening hours of March 10, 1967, and the early morning hours of March 11, 1967; that Pearson had been drinking a considerable amount during that period of time. Approximately at midnight, 10 or 12 persons, 19 to 20 years of age, grabbed Pearson and began kicking him. Both Lewis and Gamble then ran away and left Pearson remaining on the street. He testified that he saw no knives in the hands of any of the persons making the assault. That was the last time he saw Pearson alive.
On cross-examination he testified that it was dark at the place where the altercation and kicking occurred, but that the attackers were considerably younger than defendant. The assaulters asked Pearson for money. He stated that while he was defending himself against an attacker, he was not able to see everything other attackers were doing to Pearson prior to his running from the scene of the occurrence.
Lucille Thomas, manager of a tavern, was the next witness for the State. She stated that she knew defendant and Pearson by sight in March, 1967, and that she had seen the two together on different occasions. On cross-examination she indicated that on March 10, 1967, she observed a disturbance occurring at 43rd and Cottage Grove, two blocks from her place of business; that people were shouting and hollering and milling about. She did not approach the scene of the disturbance and, other than hearing the noise of the disturbance, did not know whether or not a fight was occurring. She reiterated that although she had seen defendant and Pearson together previously, she could not indicate when or where she had observed them.
George Gibson, life insurance agent for Abraham Lincoln Life Insurance Company, testified on behalf of the State. On March 1, 1967, he sold a whole life insurance policy to Charles Williams in the amount of $1,000. Charles Williams was the insured on the policy and Mary Williams was the beneficiary. On cross-examination, Gibson stated that he did not recall the exact date on which the application for the policy was signed. He knew defendant for approximately one year before taking the application and defendant had no other previous insurance policies issued through Gibson. On the day on which Williams took out the policy, Gibson was not solicited by Williams, but rather just happened to visit defendant's residence.
The next witness called by the State was Seymour Cohen, an insurance agent for Mayflower Life of North America. He stated that he sold a policy to a person by the name of Charles Williams but did not recognize defendant in court as the person to whom he sold the policy. He identified the policy as a $1,000 life insurance policy and the insured as Charles Williams.
Detective Charles Smith of the Homicide Unit, Chicago Police Department, then testified on behalf of the State. On March 11, 1967, he went to 1200 East 130th Street and observed an automobile with a person apparently dead sitting behind the wheel. The deceased was removed from the automobile, a search of his person was conducted and various articles were found. A red wallet was recovered from the deceased's right, rear pocket. An inventory of the contents of the wallet disclosed a bond slip with the name Charles Williams on it, a vehicle identification card, with a vehicle license number for the automobile in which deceased was found. The vehicle license number was that of Charles Williams, 7146 South Harvard. Smith testified that a car was then dispatched to 7146 Harvard in order to bring someone to the location for identification purposes. A woman was brought to the scene, who identified herself as Mary Williams. The body found in the automobile was taken to the County Morgue where it was noted that the deceased had multiple stab wounds in the chest area. The officer stated that he then obtained a photograph of Charles Williams from the Crime Lab and viewed the victim in the Morgue and noted that the picture and the body did not resemble each other. A warrant was then issued for Charles Williams. On cross-examination, Smith identified the sweater, sport coat, and outer coat removed from the victim, and stated that there were holes which may have been stab marks in the sweater, but not in either of the other two outside garments.
Robert Boese, a chemist for the Chicago Police Department, testified for the State. On March 16, 1967, he had occasion to make an investigation of a two-gallon can of a Gardall motor oil. He identified a photograph of the can. Analysis of the liquid contained in the can indicated it was gasoline. On cross-examination, Boese testified that debris found inside the automobile was partially consumed belt wadding and a rug type of fibrous material. Chemical analysis indicated that there was no gasoline on ...