APPEAL from the Circuit Court of Cook County; the Hon. SAUL A.
EPTON, Judge, presiding.
MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
Defendant, Pearley Hughes, was charged by indictment with the murder of John Hall and with aggravated battery against Kevin Law. After a jury trial, defendant was found not guilty on the charge of murder, but guilty of the voluntary manslaughter of John Hall and the aggravated battery against Kevin Law. The trial court entered judgment on this verdict and sentenced defendant to 1 to 4 years in prison. From this judgment the defendant now appeals.
On appeal defendant makes the following contentions: (1) that the trial court erred in denying his motion for acquittal (a) because the prosecution failed to prove beyond a reasonable doubt that the defendant acted without lawful justification, and (b) because the prosecution failed to prove beyond a reasonable doubt that the act of the defendant was the proximate cause of John Hall's death; (2) that the trial court erred in denying defendant's motion for a new trial based on the fact that Dr. Carlos Say, although listed by the prosecution as a prospective witness, was never called and was unavailable to the defendant at the time of trial; (3) that the trial court erred in instructing the jury; and (4) that the trial court erred in refusing defendant's request to make an offer of proof pursuant to a motion to strike the jury panel.
On September 26, 1973, John Hall, Kevin Law and the defendant were working for the J.D. Construction Company installing underground sewers at J.O. Road and Stony Island in Chicago Heights. Hall was employed as the operator of a crane and Law as the oiler of that crane. As oiler, Law both maintained the crane and served as apprentice to Hall. Defendant was employed as a "tag line" man, the worker responsible for keeping the lines of the crane straight and for relaying signals from the workers underground to the operator of the crane.
Called as a witness by the State, Kevin Law testified that during the afternoon of September 26, 1973, as Law was operating the crane, one of the "tag lines" of the crane broke. Although it was his responsibility, defendant was not holding the "tag line" at the time it broke. After untangling the line, Law and the defendant walked toward John Hall who was standing by the operator's cab of the crane. The defendant and Hall began arguing. Hall told the defendant it was his job to hold the line while the machine was operating. At some point, Hall removed his glasses and placed them on the crane. Although there was no physical contact during this argument, Hall did shake his finger at the defendant. The argument ended and Hall replaced his glasses.
Law further testified that after defendant and Hall stopped speaking, defendant took four steps away from Hall, threw off his hard-hat and picked up a four-foot long two-by-four board. The defendant swung at Hall and hit him on the side of the head causing Hall to stumble backwards and fall to the ground. At this point, Law told Hughes and Hall to "cool down," but Hughes struck Hall again in the shoulder area. Law told Hughes again to stop, but Hughes took a third swing at Hall. Law did not see if or where this third blow landed.
Law went on to testify that after the defendant hit Hall, he turned toward Law and hit him on the side of the head with the two-by-four, fracturing Law's jaw in two places. Law then retreated, picked up a stick of his own and yelled at the defendant from across the street. According to Law, Hall had no weapon, nor did he reach into his pocket during the incident. Law further stated that he never jumped on defendant's back.
John Mack, also called by the State, testified that he was standing in the shaft about 25 feet from the participants at the time of the incident. Although he could not hear what was said, he could tell from their facial expressions that the defendant and Hall were arguing. Mack stated that the defendant took a few steps away from Hall, disappeared from his line of vision due to the sheeting around the shaft, reappeared with a two-by-four, and struck Hall three times, twice about the face and once on the shoulder. Mack further testified that after the defendant hit Hall, Law tried to talk to the defendant to calm him down. The defendant then hit Law. Law never jumped on the defendant, nor did he have any weapon. Mack further stated that he never saw a weapon in Hall's hand.
Mack also testified that after the fight Hall said that he was all right and could continue working. Mack noticed that Law was bleeding profusely and took Law to the hospital.
The next witness called by the State, David McFadden, the labor foreman, testified that he arrived at the end of the incident. At this time, McFadden saw Hall on the ground with nothing in his hands and the defendant standing over Hall holding a two-by-four. Hall was bloody and his nose was scratched. McFadden told the defendant to leave and the defendant responded, "Make them leave me alone." After the defendant walked toward his car, McFadden went over to Hall who said he was all right and returned to operate the crane. McFadden told Hall to drop the bucket of the crane into the shaft to pick up dirt. When Hall failed to raise the bucket, McFadden sent another worker, Jerry Dorsey, up into the crane. Dorsey turned off the crane engine and a truck driver removed Hall from the crane. Dorsey stated at trial that Hall "slid out of his seat" in the cab of the crane.
McFadden went on to testify that the defendant had asked to leave earlier in the day, but did not explain why. McFadden also indicated that he had seen Hall on previous occasions with a knife with a hook blade. However, McFadden did not remember seeing Hall with the knife on the day of the incident.
Another witness called by the State, Archie McEachern, the general superintendent, testified that the defendant came to see him in the office after the incident. McEachern indicated that at this time the defendant told him that he had hit Hall with a "stick" and that he had meant to kill him. McEachern also stated that the defendant never mentioned that Hall first attacked him with a knife. In the office at the time was the project manager, Bruce Boddy, whose testimony at trial corroborated the above testimony of McEachern.
McEachern went on to testify that after talking to the defendant, he went to see Hall and noticed a bruise on Hall's nose and that Hall's lip was swollen. McEachern returned a half hour later and Hall told him he had a severe pain in his chest. An ambulance arrived 10 minutes later and McEachern accompanied Hall to the hospital. Approximately five or six minutes after arriving at the hospital, as ...