APPEAL from the Circuit Court of Macon County; the Hon. DONALD
W. MORTHLAND, Judge, presiding.
MR. PRESIDING JUSTICE REARDON DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 14, 1979.
The defendant, Darrel W. Mullinax, was charged on August 17, 1977, with three counts of attempted murder in violation of section 8-4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 8-4), one count of arson in violation of section 20-1 of the Code (Ill. Rev. Stat. 1975, ch. 38, par. 20-1), and one count of assault in violation of section 12-1 of the Code (Ill. Rev. Stat. 1975, ch. 38, par. 12-1). Following a jury trial, defendant was found guilty on two counts of attempted murder (with respect to his wife and infant son) and one count of arson. Defendant appeals his convictions, alleging numerous errors.
At defendant's trial, his wife, Lucy Mullinax, testified that on August 16, 1977, she and her 5-week-old son were at the home of Judy Kaiser in Decatur, Illinois. She had previously had an argument with the defendant and had come to Kaiser's to spend the night. Mullinax testified that, during the early morning of the 16th, she received a telephone call from the defendant who asked her if she was coming home. When Mullinax responded negatively to this inquiry, the defendant told her, "Well, you and Brandon have got forty-eight hours to live." Defendant then hung up, but Mullinax called him back and he again repeated that she and their son had 48 hours to live.
Approximately 20 minutes after this telephone conversation, the defendant's wife observed him outside Kaiser's home opening the trunk of her (Mullinax's) car which was parked next to the house. After calling the police, Kaiser observed that Mullinax's car was on fire. The police arrived shortly thereafter and helped Mullinax, her son, and Kaiser from the house.
People's witness Judy Kaiser corroborated Mullinax's version of the occurrence. However, Kaiser did not actually see the defendant outside her home, or see him set fire to the car. Various police officers who were dispatched to the scene also testified for the State. The flames from the automobile, which was estimated to be within 2 1/2 to 3 feet of the house, were described as extensive. Although Kaiser had testified that there was some damage to the house as a result of the fire, the police and firemen at the scene did not observe such. The victims, however, as they evacuated the house were within 2 or 3 feet of the flames.
Defense witness Douglas York testified that he saw the defendant in his tavern during the early morning hours of August 16. The defendant appeared to York to be intoxicated.
Defendant testified, on his own behalf, that on the night in question he went to Kaiser's house, where his wife's car was parked, to get a "C.B." radio out of the trunk of her car. There was no light in the trunk so he lit a match to look for the radio. When he did so, the car burst into flames. Defendant's wife had previously testified that she generally kept a can of gas in the trunk of her car and there was a gas can in the trunk on the night in question. After the trunk had ignited, the defendant slammed the trunk lid and left immediately.
On cross-examination, defendant admitted that he was not burned or scorched when the car caught fire. He denied both that he had placed the can of gasoline in the trunk of the car and that he had deliberately set fire to the car. He also testified that he had no knowledge that his wife and son were in the rooms adjacent to where the car was parked.
On rebuttal, the State called the Decatur fire marshall, William Turner, who had previously testified for the defendant. Turner stated that the defendant would have sustained burns from the resulting explosion when the fumes ignited, if he had been standing over the trunk at the time, as he had previously testified.
Following the defendant's convictions, and on June 15, 1978, the court imposed concurrent sentences as follows: 3 to 9 years for arson; 3 to 9 years for the attempted murder of Brandon Mullinax; and 3 to 9 years for the attempted murder of Lucy Mullinax.
1 The defendant initially challenges his convictions arguing that the court improperly allowed into evidence the telephone conversation between him and his wife, wherein he allegedly told her that she and their son had 48 hours to live. Defendant contends that because this conversation was confidential it was, therefore, privileged and not admissible. The defendant's reliance on the provision of the Criminal Code that a spouse may not testify as to any confidential communication or admission made by the other is, however, entirely without merit. Ill. Rev. Stat. 1975, ch. 38, par. 155-1.
This section provides an explicit exception to the privileged communications between husband and wife "in cases where either is charged with an offense against the person or property of the other * * *." (Ill. Rev. Stat. 1975, ch. 38, par. 155-1.) The defendant, having been charged with the assault and attempted murder of his wife and the arson of her automobile, cannot seriously contend that this threatening communication, which is relevant to those charges, is privileged.
Defendant next alleges that error occurred when the State attempted to impeach defense witness Douglas York, by showing a prior inconsistent statement and, thereafter, offering no evidence of the inconsistent statement. When questioning York about certain ...