APPEAL from the Circuit Court of Cook County; the Hon. SAUL A.
EPTON, Judge, presiding.
MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Defendant, Wilbur McCord, caused Miss Tracy Roberts' death by stabbing her in the back. He was charged by indictment with the offenses of murder and voluntary manslaughter in violation of sections 9-1 and 9-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1971, ch. 38, pars. 9-1, 9-2). *fn1 Upon a jury trial defendant was found guilty of voluntary manslaughter. Judgment was entered on the verdict and defendant was sentenced to serve a term of confinement of 3 to 9 years in the Illinois State Penitentiary.
From entry of the judgment of conviction defendant appeals and contends (1) that the trial court erred in failing to grant defendant's motion for a directed verdict at the close of all the evidence with respect to the charge of murder; (2) that the trial court erred in tendering to the jury instructions as to both the offense of murder and the lesser included offense of voluntary manslaughter; and (3) that certain comments of the trial court were improper and served to deny defendant a fair trial.
A review of the evidence reveals that at approximately 8 p.m. on Saturday, August 4, 1973, defendant was making a purchase in a liquor store located at 2201 West Madison Street in Chicago, Illinois. To this end, defendant placed $2 on the counter near where Tracy Roberts was standing. Defendant momentarily averted his gaze from the counter during which time his money was removed. The store's cashier informed defendant that Tracy Roberts had taken it.
An argument then ensued between defendant and Tracy Roberts. Defendant demanded the return of his money. Roberts denied having taken it. The dispute was joined by defendant's sister, Jessie Duncan, who told Tracy to return the money to defendant. Duncan and Roberts began to "tussle" and pushed and shoved each other but no blows were struck. Duncan's eyeglasses were knocked off in the scuffle. Defendant interrupted the struggle by separating the two women.
According to a statement rendered by defendant to police officers later that night, defendant left the liquor store and thereafter returned with a "jack handle." Defendant admitted that "she was making me angry so I hit her with the jack handle." Other patrons pulled defendant away from Roberts, ordered him to leave her alone and threatened him with bodily harm if he chose to continue the fracas.
Defendant's aunt, Charlie Bell Parker, upon observing the commotion, entered the liquor store and persuaded defendant to depart with her. At the command of the storekeeper, the group of people moved out of the store and into the street.
According to Parker, Roberts became abusive towards her and announced, "I came to kill or get killed." During this episode, defendant seized the opportunity to go to his home and obtain a butcher knife. Thus armed, according to defendant, "for my own self-protection," defendant returned to the liquor store.
Upon his arrival, he observed Roberts and Parker fighting in the street. At the time of the incident Parker was 58 years of age and afflicted with an arthritic condition of the back, arms and legs. Roberts was 23 years of age, 5 feet, 6 inches tall, and weighed 143 pounds. No testimony as to defendant's stature appears of record.
According to defendant, Roberts was "hot" and "had my auntie by the collar with both hands trying to hit her with the jack handle," apparently resulting in bruises but no lacerations or broken bones. Defendant told Roberts to "cut it out," approached Roberts from the rear, and stabbed her with the knife, thereby inflicting wounds which proved mortal later in the evening. Immediately after the stabbing, however, Roberts was able to walk a short distance from the scene, leaving a trail of blood.
Defendant returned to his home and subsequently told his neighbors, "She is not hurt that bad * * * It wasn't my intention to hurt her that bad * * * I stabbed her with the knife * * * All I wanted her to do was to leave my sister and aunt alone." He obtained an automobile and at the urging of his neighbors left the scene of the incident to "cruise around * * * not thinking of anything happening about this * * *."
Several hours later, upon his return, defendant was observed by Chicago Police Officer William Foster standing in the doorway of his home. As the officer approached, defendant turned and ran into the building, thus exposing to view a knife in his rear pocket. Shortly thereafter, defendant was placed under arrest. Subsequent to defendant's apprehension, police officers recovered the butcher knife from defendant's person, which knife was identified as the one used to stab Roberts. During the course of interrogation that evening, defendant uttered the aforementioned statement in which defendant described the circumstances surrounding his stabbing of Roberts.
Forensic pathologist, Dr. Edward Shlagos, established that the cause of Roberts' death was a knife wound which resulted in "laceration of the lung in a through and through fashion causing major internal bleeding." Post-morten toxicological examination of Roberts' body fluids indicated that on the evening of her death Roberts' blood contained "227 milligrams ethnol [sic]."
The defense offered testimony of defendant's aunt and defendant's other sister, Ernestine Goggins. Goggins testified to Roberts' violent reputation in the community; that the victim was known as a prostitute and lesbian; had "set up" people in the ...