APPEAL from the Circuit Court of Cook County; the Hon. FRANK
J. WILSON, Judge, presiding.
MR. JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:
Defendant, Lawrence Chew, was indicted and tried for the murder of his uncle, Nelson Chew. After a jury trial he was found guilty of involuntary manslaughter and sentenced to three to nine years.
On appeal defendant contends that there was insufficient evidence of reckless conduct to warrant the conviction of involuntary manslaughter; that certain cross-examination and rebuttal testimony was prejudicial; and that his sentence was excessive.
Defendant, who was 18 years old at the time of the incident, August 10, 1973, had been living at 8816 South Laflin, the home of his aunt, Ophelia Griffis, for about three weeks. Nelson Chew, 47, Mrs. Griffis' brother, had been living in the three-bedroom cottage for about 2 1/2 years. It is undisputed that Nelson Chew and defendant were on friendly terms and frequently drank together.
That Friday evening, Mrs. Griffis testified that she left her home about 8:20 p.m., to go to church and that before leaving she checked to see that Nelson's shotgun which was kept in the closet in her bedroom was still there. She locked the closet door and took the key with her.
Defendant testified that he left his parents' home at 9212 S. Racine about 6:30 p.m., and he arrived at his aunt's house around 7:30 p.m. He had no key for the door so his uncle, Nelson Chew, admitted him. He noticed that his uncle's eyes were red and that he smelled of alcohol. Mrs. Griffis had already left for church when he arrived. He and Nelson Chew sat down at the kitchen table and were drinking and talking about the family. Nelson drank about a quart of wine and defendant drank a six-pack of malt liquor. Defendant testified that they were not arguing, that he loved his uncle, and that they always got along very well together. Defendant and his uncle drank together frequently.
Defendant testified that around 10:30 p.m., after they had been sitting at the kitchen table for sometime, Nelson Chew went into Mrs. Griffis' room and got the shotgun. Nelson pointed it at defendant who said, "Don't do that because I am afraid." Defendant grabbed the barrel of the shotgun and managed to wrest it away from Nelson. A struggle ensued. Nelson attempted to pull the gun away from defendant and the gun discharged. At trial the pathologist testified that Nelson Chew was hit in the right lateral chest.
When asked why the gun went off defendant testified, "I guess my finger was on the trigger." Nelson walked into the back bedroom which adjoined the kitchen and lay down on the bed. Defendant followed him into the bedroom putting the gun on a chair near the bed. Defendant testified that he was in shock and went to the phone to call the police to tell them a man had been shot. When he returned to the bedroom his uncle had rolled off the bed and onto the floor. When the police arrived he was waiting for them in the back of the house. He testified repeatedly that he told the police the shooting was an accident.
Officer John McKenna testified that he was the first officer tn the scene and that he and two fellow police officers had been informed over the police radio at about 10:40 p.m., that a man had been shot at 8816 S. Laflin in Chicago. When they arrived at that address they entered through the front door which was open and proceeded toward the back of the house where he saw defendant emerging from the back bedroom into the kitchen. There were fresh bloodstains on the kitchen floor and there was a man on the floor in the bedroom who was bleeding. He asked defendant what had happened and defendant answered, "I shot him." Defendant was then handcuffed and placed under arrest. Before leaving the house defendant asked if he could have his cigarettes. Officer McKenna observed the cigarettes on a counter in the bathroom and saw a key on top of the cigarettes. He did not touch the key or cigarettes at that time. It was later ascertained that this key would open the closet door where the shotgun had been kept. Nelson Chew was taken by ambulance to Little Company of Mary Hospital where he died a short time later.
Mrs. Ophelia Griffis testified that when she left her house at approximately 8:20 that evening Nelson Chew was the only person home. When she returned home around 11 p.m., she saw police officers in the house and spoke to them. One of the officers had a key which he used to open her closet door. Until that time she thought she had the only key. Mrs. Griffis testified that Nelson and defendant got along well; that Nelson drank alcoholic beverages whenever he could get them and that he and defendant frequently drank together. It was later stipulated that Nelson Chew's blood contained a high percentage of alcohol.
Officer Hugh O'Hagan testified that he spoke to defendant that evening in the police station. After informing defendant of his rights he asked defendant what had happened. Defendant told Officer O'Hagan that he and his uncle were alone in the house, that they were having an argument, that Nelson Chew left and came back a short time later carrying a shotgun, that defendant pulled the gun away from his uncle and the gun went off. Officer O'Hagan stated that he told defendant if that is what happened, he, defendant, would have been injured, not his uncle. Thereupon defendant stated that the gun went off when he grabbed the gun from his uncle. At one point defendant said his uncle's finger was on the trigger and subsequently stated that his own finger was on the trigger. Officer O'Hagan never asked if the incident was an accident. He did not detect an odor of alcohol on defendant's breath.
Edward Chew, defendant's brother, testified that defendant and Nelson Chew had a good relationship; they appeared to be the best of friends; Nelson would help defendant in every way he could. He had seen both Nelson and defendant drink alcoholic beverages.
Defendant first argues that there was no evidence of reckless conduct by the defendant upon which to base a conviction for involuntary manslaughter. The involuntary manslaughter ...