APPEAL from the Circuit Court of Cook County; the Hon. EARL
ARKISS, Judge, presiding.
MR. JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT:
Defendant, Bernice Waller, was tried in a bench trial, convicted of voluntary manslaughter, and sentenced to a term of one to three years of imprisonment.
On appeal she contends that the trial court erred in allowing a witness, who had remained in the courtroom in violation of a motion to exclude witnesses, to testify in rebuttal, where that witness' testimony did not rebut any evidence introduced by the defendant.
On March 10, 1972, defendant returned home from work at about 8:30 p.m. She arrived approximately three hours later than usual to find her husband, Ronald Waller, already home. The couple quarreled and Ronald incurred a stab wound from which he subsequently died.
At trial, just prior to the calling of the State's first witness, the court, on its own motion, moved to exclude witnesses. Both sides responded that all witnesses had been excluded.
The State called two police officers as its only two witnesses. The first officer testified that he went to the Wallers' apartment and found Ronald Waller on the floor. Defendant told him that she had accidentally stabbed her husband. The second officer testified that he talked to defendant at the police station. She told him that she and her husband had argued, the husband then grabbed her arm, and she went to the kitchen. She returned with a butcher knife at which point Ronald Waller advanced toward her and accidentally pushed himself into the knife.
Defendant and her grandmother both testified that defendant went to the hospital and had a miscarriage in November of 1971, as a result of injuries she received when her husband beat her. She again was in the hospital in February of 1972 because of an incident with her husband. Defendant testified that her husband prevented her from calling her mother, hit her six or seven times in the head or stomach, and called her a "bitch." She picked up a knife from the kitchen to help her in her efforts to call her mother. When she entered the bedroom, "he went berserk and ran up on the knife." She called the police, her mother, and her grandmother.
In rebuttal the State called back the first officer who then testified that he saw no bruises or scratches on defendant when he saw her in her home. Defense counsel objected to the calling of the State's second rebuttal witness, Roxy Brewer, the sister of the decedent. Mrs. Brewer had been sitting in the courtroom throughout the trial. The court ruled that although there had been a motion to exclude, the court would take Mrs. Brewer's testimony under advisement. Upon submission of law the court would rule at a later date as to whether or not her testimony was admissible. No further hearing was held on this matter. Mrs. Brewer testified that in March, 1972, she had a conversation with defendant in which defendant said her husband was angry with her for receiving a candygram at work from an Ed Washington. Mrs. Brewer further testified that in the latter part of February, 1972, she lived downstairs from the Wallers. She heard defendant say, "If you call me a bitch again, I'll stab you with this knife." She then ran upstairs and took a butcher knife from defendant's hands, but prevented her brother from removing defendant from the premises.
The court found defendant guilty of voluntary manslaughter in that her act had been done as a result of sudden and intense passion and in the face of severe provocation. After a hearing in aggravation and mitigation, she was sentenced to one to three years' imprisonment.
On review defendant argues that the trial court committed reversible error when it allowed a rebuttal witness to testify even though that witness had remained in the courtroom in violation of a motion to exclude witnesses and when the testimony did not rebut any evidence introduced by defendant.
1, 2 The State produces rebutting evidence to explain, repel, contradict or disprove evidence given by the defendant. (People v. Carbona (1975), 27 Ill. App.3d 988, 327 N.E.2d 546.) "Although testimony that would be proper as evidence in chief should not be reserved for rebuttal, these matters rest largely within the discretion of the trial court and such rulings will ordinarily not be set aside upon review." (People v. Lion (1957), 10 Ill.2d 208, 217, 139 N.E.2d 757, 762.) The trial judge has further discretion in that he may allow a witness to testify in rebuttal even though that witness has violated an order to exclude witnesses. People v. O'Malley (1949), 404 Ill. 165, 88 N.E.2d 454; People v. Snell (1966), 74 Ill. App.2d 12, 219 N.E.2d 554.
Defendant, in the case at bar, testified she did not remember receiving a box of candy on Valentine's Day nor having a conversation with her husband about a box of candy. The State's second rebuttal witness, Mrs. Brewer, sat through the entire testimony after the court's motion to exclude witnesses. She then testified that in March, 1972, defendant told her the victim was angry with defendant for having received a candygram at work from an Ed Washington. Mrs. Brewer further testified that in February, 1972, she heard defendant tell the victim, "If you call me a bitch again, I'll stab you with this knife." On that occasion Mrs. Brewer took a butcher knife from defendant's hands. The State's rebuttal witness rebutted defendant's testimony concerning the candy, but also testified to new matters very important to the State's case in chief. The admission of the testimony of Mrs. Brewer violated the court's own order to exclude witnesses. The question arises as to whether this violation amounts to reversible error.
The State asserts that the issue of intent was raised by defendant and was proper for rebuttal. It relies on People v. Lion (1957), 10 Ill.2d 208, 139 N.E.2d 757, for the proposition that threats made by an accused against the deceased prior to the commission of the criminal act are admissible as evidence of malice and criminal intent. We find the Lion facts to be distinguishable from those in the case at bar. In Lion witnesses testified as to threats by the accused against the decedent. The defendant denied having made any threats against the decedent and described many kind things he had done for her. A rebuttal witness then related a specific prior threat made by the accused against the decedent. The court, on review, however, made no mention of any motion to exclude witnesses. The trial court in the instant case moved on its own motion to exclude witnesses. Mrs. Brewer, nonetheless, sat through the entire trial and then testified as a rebuttal witness that defendant had previously threatened the decedent with a knife. Neither defendant nor any other witness had testified as to any threats by defendant against decedent.
3 Our Supreme Court in People v. Crump (1955), 5 Ill.2d 251, 125 N.E.2d 615, questioned the propriety of permitting a witness to testify in violation of the rule excluding witnesses unless his testimony was strictly limited to rebuttal testimony. Although the Supreme Court reversed and remanded due to other errors, such trial court action was found not to prejudice the defendant in and of itself. Violation of the rule excluding witnesses has also been found to be inexcusable where a defendant was not proved guilty beyond a reasonable doubt. (People v. Botulinski (1943), 383 Ill. 608, 50 N.E.2d 716.) The defendant, however, must show that he has been prejudiced by the testimony of the witness so allowed to testify. (People v. Hill (1968), 97 Ill. App.2d 385, 240 N.E.2d 373; People v. Farnsley (1973), 53 Ill.2d 537, ...