APPEAL from the Circuit Court of Cook County; the Hon. FRED G.
SURIA, JR., Judge, presiding.
MR. PRESIDING JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant was convicted of voluntary manslaughter and was sentenced to a term of 3 to 20 years' imprisonment. On appeal, he contends the trial court erred when it (1) granted the State an extension of time within which to bring him to trial; (2) allowed the State to use defendant's silence at the time of his arrest for impeachment purposes; and (3) adjudged him guilty beyond a reasonable doubt.
Defendant was indicted for the murder of Curly King which occurred on October 31, 1972, in a vacant lot at the corner of 63rd and Michigan. On February 27, 1974, the State moved to extend defendant's trial date for an additional 60 days. In support of its motion an Assistant State's Attorney and a State investigator testified about their efforts to locate the chief prosecution witness, Terry King Johnson, the decedent's wife at the time of his death. The trial court did not rule upon the motion, but released defendant from custody on bond which automatically extended his term.
On April 5, 1974, defendant demanded a trial and the State moved to extend. Cook County sheriff's investigator James Rossi testified about his attempts to locate Terry King Johnson. He had checked with the Public Aid Department and found that checks for Terry King were being sent to 6518 South Vernon. At that address, Marshall Lindsey stated that Terry King Johnson no longer resided there, but said she now lived in Greenfield, *fn1 Mississippi. Terry King Johnson's sister, Rose Ann, gave him an address in Bartlett, Illinois, but the witness was not residing there either. Her children were not registered in the Chicago public school system. On February 20, 1974, he checked with a Captain Sweeney of Greenfield who stated that he would attempt to locate her. He checked with Sweeney again in mid-March, but the witness had not been located at that time. He admitted that he had not spoken to Sweeney for "probably a couple weeks or so."
After hearing arguments on the motion, the trial court found the State had exercised due diligence in its attempts to locate the witness and that reasonable grounds to believe that she would be obtained by a later date existed. The motion to extend was thereupon granted. The case went to trial on March 29, 1974, and the following pertinent evidence was adduced.
Since her deceased husband Curly's death she has remarried and now lives in Greenfield, Mississippi. On October 31, 1972, she was separated from Curly and lived with her sister. She was seeing defendant as a friend, but was not dating him. Curly arrived at her sister's apartment between 9:15 and 9:30 a.m. She, Curly, and their three children went to their parked car in a vacant lot across the street from the apartment. While she was sitting in the car discussing reconciliation, Curly struck her. She exited from the vehicle and as she was running away, Curly caught her, pushed her onto the trunk, and hit her with his fist six or seven times. During this beating, defendant approached and a fight ensued between Curly and defendant. After five or six minutes the fight ceased and defendant pulled a pistol and shot Curly twice. She stood about six feet away from the men during the shooting. Curly did not have any objects in his hands. There was no space of time between the shots.
After Curly fell to the ground, she went to her sister's apartment to call the police. As she was returning to the vacant lot she saw defendant standing on the intersection's northeast corner. They walked back to the scene and when the police arrived defendant handed the gun to her. Although she told the police that she had shot her husband, she had done so while in a state of shock. After she and defendant were arrested and transported to the police station, she told the police that defendant had shot Curly.
On cross-examination she denied answering at a preliminary hearing that defendant told her "* * * he was ready to go to jail for me," but stated that she had said he was not ready to go to jail for her. She admitted owning a .32-caliber pistol prior to the incident. She did not recall previously stating either that she had taken the gun from defendant rather than having it handed to her, or that defendant had seen her boy friend. She admitted that it was the police who had told her that she had been in a state of shock when she first confessed to the murder.
He was working in his company's parking lot approximately three-quarters of a block from the scene. He saw three people standing in the vacant lot. Two men began to fight and continued for two or three minutes while a woman in a maxi-coat observed. After they had separated, he saw one man fall to the ground and heard a noise like a firecracker. As the fallen man attempted to rise, he heard another loud noise and the fallen man collapsed. The man who remained standing was wearing a blue denim jacket.
She lived on the 14th floor of an apartment building directly across from the scene. She heard an argument through her bedroom window. As she looked out the window, "a man" pulled out a pistol and shot another man. When the man who had been shot and was on the ...