Appeal from the Appellate Court for the First
MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:
After a bench trial in the circuit court of Cook County, the defendant, Bernice Waller, was convicted of one count of voluntary manslaughter. The appellate court reversed, one judge dissenting (36 Ill. App.3d 888), and we granted the State's petition for leave to appeal.
The appellate court held that the trial court had erred in admitting the rebuttal testimony of a witness who (1) had remained in the courtroom in violation of an order excluding witnesses, and (2) whose testimony was not confined to rebuttal of Mrs. Waller's testimony. We reverse, because we find that the defense failed to preserve its objection to the witness' alleged violation of the exclusionary order, and because the witness' testimony was admissible in rebuttal of the defendant's testimony.
On March 10, 1972, Ronald Waller suffered a fatal wound from a knife wielded by his wife, the defendant. There were no witnesses to the occurrence. Mrs. Waller was charged with murder.
At trial, before the first witness was sworn, the court asked whether there would be a motion for the exclusion of witnesses. Both the assistant State's Attorney and defense counsel responded that their witnesses already had been excluded. The State then called Officer Thelen, one of the first police officers to arrive on the scene. Officer Thelen testified that he had found the deceased near the front of the apartment, on his back with a stab wound in his stomach, and that Mrs. Waller had volunteered that "she had stabbed her husband and it was an accident." The State also called Investigator Savage, who had arrived on the scene somewhat later. He testified that Mrs. Waller told him that, during the course of an argument with the deceased, she had gone into the kitchen to secure a knife, and that, upon her return to their bedroom, the deceased had "advanced towards her and accidentally pushed himself into the knife."
At the close of the State's evidence the defense requested and the court denied a directed verdict of not guilty.
The defense called Mrs. Waller's grandmother, who testified to previous assaults upon Mrs. Waller by the deceased. Mrs. Waller also testified to the previous assaults, and gave her version of the fatal quarrel:
"He ran me into the kitchen and I got the knife off the sink and I came back not intentionally to get the knife and use it on him, but so I could get a chance to call my mother. He went berserk and ran up on the knife."
Mrs. Waller's own attorney then asked her, "Had you said anything to him regarding the use of the knife or any words to that effect?", to which she responded, "No."
On cross-examination, Mrs. Waller denied having received a box of candy on Valentine's Day 1972. In addition, the following exchange took place:
"Q. Did you have any conversations with your husband from Valentine's Day, 1972, until the time that he was killed; did you have any conversations with him in relation to any other men that he might have thought you were seeing?
On rebuttal, the State sought to introduce the testimony of Roxy Brewer, sister of the deceased, who had been present during the testimony of the previous witnesses. Defense counsel's objection led to the following colloquy:
"THE COURT: There was a motion to exclude all witnesses, is that correct?
ASSISTANT STATE'S ATTORNEY: * * * [C]counsel never made a ...