APPEAL from the Circuit Court of Pope County; the Hon. HARRY
McCABE, Judge, presiding.
MR. JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:
Defendant appeals from a judgment of the circuit court of Pope County wherein the trial court sitting without a jury found him guilty of the crime of voluntary manslaughter.
Defendant admits that the decedent Carl Worley was shot and killed by a bullet fired from a gun held by the defendant but contends: (1) that the shooting of Worley was accidental, and (2) that since there was some evidence of self-defense, the burden of proving the defendant guilty beyond a reasonable doubt as to that issue was upon the State, and the State did not sustain its burden.
The following witnesses testified on behalf of the State, namely: Clarence Cowsert, Jack T. Nolen, Charles Hicks and Ray Worley. The defendant took the stand in his own defense but called no other witnesses. Trula Rorer, the wife of the defendant, and Donna Worley, the wife of the decedent, witnessed the shooting in this case but neither was called to testify by the State nor by the defendant.
Clarence Cowsert testified that on August 18, 1975, he brought the deceased to the home of the defendant in Brownfield, Illinois. He was in Baker's Tavern in Elizabethtown, Illinois, when the decedent came in. He had not seen the decedent for more than a year. Decedent called him over to his table and bought him a beer and had one himself. The decedent then gave Cowsert $5 to take him to Brownfield. He let the decedent out at the Rorer home but he (Cowsert) did not go into the house.
When the decedent arrived at the home of the defendant, the defendant was in his house with Trula Rorer, his wife, Donna Worley, the wife of the decedent, Ray Worley, the 11-year-old son of the decedent, an 18-month-old child of the deceased, and several other children of the families. Shortly after he arrived, the decedent met his death from a bullet fired by a gun held by the defendant. It is undisputed that the gun was brought to the defendant's home by the wife of the decedent.
Jack T. Nolen, a detective with the Illinois State Police testified that he came to Pope County to help investigate a shooting incident that happened the day before. He testified that on August 21, 1975, he took a statement from the defendant which in pertinent part reads:
"I Herschel C. Rorer was at my home in Brownfield when Clarence Cowsert brought Carl Worley out to my house. Carl got out of the car, walked up in front of the house and stopped & called for Donna his wife who was there. His wife would not answer him because she was scared of him & then Carl Worley opened the door & came on in the house without knocking. He came in the kitchen mad and the argument started. He ask Donna if she was going hime & she said no not after what you told me at the dairi barr Saturday. He told Carl Wayne Worley to go to the car, grabbed him & took him to the car. He came back in the house & told Donna if I don't get youns I have backing that will. He went out side grabbed the baby. Donna got the gun ran out the door holding it toward the sky he turned & came after her. She ran back into the house. He came in the door & said I am going to kill the baby go ahead & shoot. She threw the gun & I caught it & shot Carl Worley. Trula Rorer went to get the sheriff in Donna Worley's car. I was trying to protect Donna & the kids & my family."
He also testified that the defendant had made a prior statement which is as follows:
"August 18, 1975 3:50 p.m.
He [Carl Worley] came to my house and he said, He called for Donna and she wouldn't go out side so he came in house he tried to get her to go home. She said no I'm not going home because if I went home I know what would happen. You would beat the hell out of me like you have before. And so he said well I'm taking the kids. She said no, he grabbed up the baby. He went to the car with the baby and she picked up the gun and run at the door hollowing at him aiming the gun at him. He held the baby up in front of him to keep her from shooting. He knew she wouldn't shoot the baby. He turned to started up toward her. He was awful mad. And he got his knife and started threw doors about that time she fired. He dropped. I sent my wife Trula to town to get the sheriff. Sheriff got there we explained what happened and why it happened."
He was then asked if the defendant had made any comments to him regarding the statement of August 18. He answered:
"That incident had occurred exactly as he had stated before with the exception that he had pulled the trigger and they felt that it would go easier on Donna than it would him."
Charles Hicks, the sheriff of Pope County, Illinois testified that he was in his office on the day of this incident when a Pat McCormack and Trula Rorer came and informed him that something had happened at the Rorer residence. When counsel for defendant asked what Trula Rorer had told him, counsel for the State's objection was sustained. He testified that accompanied by a deputy sheriff he immediately went to the Rorer home and the first person he saw was Clarence Cowsert sitting in his car. He immediately went to the front of the Rorer home and found the deceased sitting in a slumped position in the doorway. When he picked up the deceased's left arm, the body slid down and lay flat on the porch floor. The deceased had a knife in his right hand at the time. After he went into the house the defendant told him that Donna Worley had shot Carl Worley.
Ray Worley, the 11-year-old son of the decedent, testified in pertinent part as follows:
"Q: Did you see somebody fire a gun?
A: I saw the gun go off but I didn't see the trigger get pulled.
Q: All right, whose hand was the gun in when it went off?
Q: And when you say Herschel, do you mean Herschel Rorer?
Q: Did someone have the gun before Herschel ...