APPEAL from the Circuit Court of Cook County; the Hon. WARREN
D. WOLFSON, Judge, presiding.
MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:
Defendant was indicted for murder (Ill. Rev. Stat. 1973, ch. 38, par. 9-1) and following a bench trial, was convicted of the lesser included offense of voluntary manslaughter. (Ill. Rev. Stat. 1973, ch. 38, par. 9-2(b).) The trial judge sentenced him to five years probation with one year to be served in periodic imprisonment. On appeal, defendant contends that the State failed to prove him guilty of manslaughter beyond a reasonable doubt.
Jean Washington testified that at approximately 9 p.m. on October 4, 1975, she and Julius Jackson were sitting on the steps of the hotel she managed on Rhodes Street. She noticed a blue and white Ford automobile pull up behind a beige and brown automobile that was parked on the east side of the street. After the driver of the blue car parked, an alarm went off. A short time later, a man appeared on the west side of Rhodes, accompanied by a woman whom Washington recognized from the neighborhood, and they proceeded to cross the street. The man walked over to the driver's side of the blue car and five minutes later, Washington heard what sounded like a gunshot. The blue car took off at a high rate of speed, and subsequently the beige car took off in the same direction as the blue car.
During cross-examination, Washington testified that prior to sitting on the steps she had been in her office when her attention was attracted by the sound of tires screeching from the direction of the front of the hotel. When she went outside, she observed a person exit from the beige car and walk to the west side of the street. At that time the blue car was not in sight. After the blue car appeared, Washington did not observe anyone leave that car, nor did she notice any of the doors of the car open. She further stated that she did not see who did the shooting nor who was shot. Although she noticed that the alarm had stopped sounding, she did not see anyone turn it off, nor was she sure from which car the sound had been emanating. However at the preliminary hearing, she had testified that the driver of the beige car cut off the alarm on his car.
Jearlean Smith, the common-law wife of Oswald Smith (Oswald), stated that on October 4, 1975, at 9 p.m. she and her husband parked their white-over-blue Ford automobile on the east side of Rhodes. While Oswald was parking, he lightly bumped the yellow car in front of them and set off that car's burglar alarm. A man, later identified as defendant, exited from a doorway across the street. He proceeded to cross the street, walk over to his car and turn off his burglar alarm. Defendant then walked over to the driver's side of Oswald's car and asked him through the half-opened window and in a raised tone of voice whether he had bumped his car. Oswald answered, in a normal tone, that defendant's burglary alarm was set too "tight."
Jearlean then decided to leave the car and on the way to her apartment nearby, she heard the voices of people sitting on a porch. Just before she opened the door to her apartment, she heard a shot. She entered her home and a few minutes later, her phone rang. After she answered the phone, she ran outside and noticed that a green car which she later learned belonged to Mildred Barnett was parked where Oswald had been parked. Jearlean then took a taxi to 61st and Cottage Grove, where an accident had occurred and Oswald was being carried to an ambulance.
During cross-examination, Jearlean testified that her husband had not had anything to drink that evening. When asked how much time elapsed between the shot and the ringing of the telephone, Jearlean's answers varied from 1 to 10 minutes. She further denied stating at the preliminary hearing that she heard the phone ringing before she entered and that made her "want to get in the house faster." She also denied testifying before the grand jury that Oswald left his car to turn off his burglar alarm.
Chicago police officer John Merriweather testified that defendant, whom he had known for about a year, came to his home on October 5, 1975. Defendant told him that on the previous evening, someone had bumped defendant's car and that when he went to talk to this individual, the latter made a hostile or threatening motion. Defendant further admitted that he shot his gun in the direction of the man and that he was willing to surrender himself to the police. Defendant stated that he destroyed the gun he used. Merriweather told him that he would call headquarters and find out what happened.
Julius Jackson stated that between 8-9 p.m. on October 4, 1975, he was sitting on the steps of the hotel on Rhodes where he was employed as a janitor. Jean Washington, the manager, was standing on the porch. He heard the sound of a burglar alarm, and then observed a man and a woman, both of whom he had previously seen in the neighborhood, crossing from the west to the east side of the street. The man walked over to a beige Oldsmobile, turned off the alarm and then walked over near the driver's side of the blue car parked directly behind the beige car. The woman, later identified as Mildred Barnett, was standing directly behind the man, later identified as defendant. The driver's window of the blue car was opened. Jackson heard voices but could not discern any words or tones of voice. He did not notice whether the man behind the wheel of the blue car moved. A few seconds later, Jackson heard what sounded like a shot and the man in the blue car then took off at a high rate of speed. Defendant walked over to his car, carrying in his hand what appeared to be a shiny object. He put the object in his pocket, got into his car and drove away. Barnett then moved her green and white Oldsmobile from the west to the east side of the street and entered a building.
During cross-examination, Jackson stated that the alarm he was referring to on direct, was the second one he had heard that evening. The second alarm sounded approximately 10 minutes after the first had been turned off. He did not know whether the two separate sirens had originated from the same car. Jackson also testified that he could not see what the man in the blue car had been doing, nor did he observe the blue car bump the beige car.
The parties then stipulated to the facts contained in the coroner's "pathological report and protocol" which revealed that Oswald Smith was 6 feet 3 inches, weighed 252 pounds and died from a bullet wound which entered his lower neck. They further stipulated that if Allen Turner were called to testify, he would say that he heard a shot while he was on the corner of 61st and Rhodes. A man, later identified as Oswald Smith, stopped his car and said "I am shot. Somebody take me to the hospital." Turner got into Oswald's car and proceeded to drive in the direction of a hospital. A short time later, Turner became involved in an accident with another vehicle. He jumped out of the car, ran to the hospital and arranged to have an ambulance sent to pick up Oswald.
Officer Dennis Kieltyka testified during cross-examination that at the scene of the accident, he searched Oswald's vehicle and found that there were two screwdrivers, one in the front, and one in the back of the car. He also ...