APPEAL from the Circuit Court of Cook County; the Hon. SIDNEY
A. JONES, JR., Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Following a bench trial the defendant, Antonio Torres, was found guilty of murder and sentenced to serve 15 to 18 years in the penitentiary. Defendant appeals and raises three issues: (1) that he was not proved guilty beyond a reasonable doubt; (2) that the trial court mistakenly interpreted the evidence; and (3) that the trial court wrongfully refused to consider the lesser included offense of manslaughter. We find it unnecessary, however, to reach defendant's contentions and, instead, reverse and remand based upon the trial court's error in denying defendant's post-trial motion for a new trial. We, therefore, refrain from any comment upon defendant's guilt, and limit our discussion of the evidence adduced in this case to those facts pertinent to our decisions today.
On July 20, 1973, defendant, Antonio Torres, his wife, Jennie Torres, and their five children lived in the second-floor apartment at 3353 West Crystal, Chicago, Illinois. The landlord, Paul Mendez, who lived in the first-floor apartment, was in the process of evicting them. At approximately 11:15 a.m. on that day, defendant shot Mendez. As a result of the wounds inflicted, Mendez died four days later, on July 24, 1973. Defendant was charged with murder, waived a jury, and the matter was tried before the bench. Defendant does not deny shooting the deceased, but claims that the shooting constituted justifiable homicide in defense of another person, his wife, under section 7-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 7-1).
Initially, the parties stipulated to the coroner's "Pathological Report and Protocol", which was admitted into evidence as people's exhibit No. 1. The report stated that: (1) the hospital surgeon's report indicated four bullet wounds; (2) the coroner's office recognized six bullet wounds, with four being entries and two exits, with two other deposits; (3) bullet wound No. 1 enters the right chest-side, slightly anteriorly external of the chest cage, and has a directional course downward from approximately 11-12 to 5-6 o'clock and is deposited in the deep muscles posteriorly low gluteal or uppermost thigh; (4) bullet wound No. 2 is right chest-side, slightly anterior of wound No. 1, with a directional course downward towards 6 o'clock, and is deposited in the right aspect posteriorly of the low lumbar vertebral column; (5) bullet wounds No. 4 and No. 5 are in the left thigh area, exit respectively through wounds No. 3 and No. 6, and were caused by bullets of essentially adynamic status.
Officer Edward Kelly testified that he and his partner were called to the scene of the shooting on the day in question. They entered the first-floor apartment and found Mendez, the victim, bleeding on the kitchen floor. There were several bullet casings in the hallway and in the victim's living room. Mendez told Officer Kelly that "the man upstairs, Tony Matos" had shot him, and told him that defendant had left in a maroon Chevrolet station wagon with his wife. Mendez was then taken to the hospital, and Officer Kelly sent out a flash message on defendant and the car. As he entered the victim's apartment, Officer Kelly saw two hand axes; one was on the dining room table and one was on the floor. Neither ax was recovered or inventoried by the police.
Investigator Clyde J. Craig testified that he and his partner stopped a station wagon fitting the description in the flash message. Defendant and his wife were in the car. When asked for identification, defendant gave Investigator Craig a social security card bearing the name Antonio Torres. Investigator Craig asked the defendant if he was Antonio Matos and defendant answered no, that he was Antonio Torres, and that he resided at 3353 West Crystal. Defendant was arrested, advised of his constitutional rights, and subsequently taken to the emergency room of the hospital, where Mendez identified defendant as the man who shot him. Defendant was taken to Area 5 homicide headquarters and questioned about the shooting. Initially, he denied shooting Mendez, but after speaking with an Assistant State's Attorney, defendant admitted the shooting and remarked that he thought Mendez was attacking his wife.
On cross-examination it appeared that Investigator Craig's complete written report did not show that defendant ever denied the shooting; however, it did definitely show that during the questioning defendant stated that he thought Mendez was hitting his wife so he shot him.
An unidentified police officer testified that he spoke with the deceased at the emergency room and was told that he had been shot by his tenant, Mr. Torres. The deceased stated that he was in the process of evicting Mr. Torres, and that at the time of the shooting he was repairing some doors in the hallway.
Officer Richard Liss testified that he recovered defendant's weapon from a brown box in the alley behind 3641 West Dickens. Defendant's wife showed him where the gun was hidden.
Investigator William Baldree testified that he spoke with defendant a number of times at Area 5 homicide headquarters, commencing at about 1-1:30 p.m. The first time defendant admitted the shooting was around 2:30-3 p.m. Defendant said he wanted Investigator Baldree to "have the right story." Defendant then stated that his wife had left their apartment and gone down the stairs, and that he followed soon after. He saw Mendez talking to his wife and he thought Mendez was going to hit her with an ax. Defendant took out his gun and fired rapidly until it was empty. He fired the shots "from the top of the stairs when he first came out and took maybe two steps down." On descent, the top five or six steps of the stairway face west, then the stairway turns north for five or six steps, and at the bottom the stairway again turns west. The gun was a Browning 9 m.m. automatic, and in order to fire until empty defendant would have to pull the trigger 13 times. Defendant never told Investigator Baldree that he fired any shots from the first-floor landing. Thirteen shell casings were recovered at the scene.
On cross-examination Investigator Baldree testified that defendant stated he was firing while coming down the stairs, and that defendant "claimed that all the shooting was done more toward the top of the stairs and none toward the bottom."
Antonio Matos Torres testified in his own defense. He was the only eyewitness who testified. On the day of the incident his wife had left their apartment and gone downstairs, and he followed a minute later. He heard Mendez angrily tell his wife "I'm going to kill you." Defendant was coming down the stairs when he first saw Mendez, who was perhaps a foot away from Mrs. Torres. Mendez was standing face to face with defendant's wife, his right side toward defendant, with an ax in his right hand raised over his head. Defendant yelled "stop." Mendez advanced toward Mrs. Torres and defendant panicked and fired until his gun was empty. He had started shooting as he was coming down the stairs, about "two or three steps from the top." At some point the victim fell down, but defendant could not recall when. Defendant admitted that the gun was his and stated that he was carrying it because it was a bad neighborhood. His wife was standing in a panicked state, and "just moved out the door." Defendant did not intend to kill Mendez, but wished to stop him and make him drop the ax. He just kept firing the gun rapidly. Defendant's wife had separated from him after the preliminary hearing in the case and he did not know where she was. She had been gone for eight months.
On cross-examination defendant could not recall whether he had told the police that Mendez had threatened to kill his wife. He started firing on the second step from the top of the stairs, panicked, and kept firing until the gun was empty one or two steps later. Mendez fell down after the last shot. Defendant first stated that he thought Mendez dropped the ax when he fell, but then stated that Mendez crawled into his apartment with the ax still in his hand. Again defendant first testified that his wife left before he started firing, but then stated she was present and walked out during the firing. Defendant was shown people's exhibit No. 5, a photograph, which showed bullet holes around the door leading to the victim's apartment. He admitted he could not hit this area with shots from the very top of the stairs, but was not sure if one could do so from two or three steps down. He explained that while he was shooting he moved the gun to the side since he did not wish to kill Mendez, and perhaps this was when the bullets struck the door frame. Defendant denied that he started shooting while Mendez was fixing the front door and then chased him back as he crawled into his apartment, firing at him as he went. After the shooting, defendant left and hid the gun. Defendant could not recall how long it took him to mention the ax to the police, or to tell them he was acting in defense of his wife.
Upon redirect defendant testified that it only took a few seconds for the gun to empty. He did not know how ...