APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM
COUSINS, JR., Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant was found guilty of murder (Ill. Rev. Stat. 1973, ch. 38, par. 9-1) and was sentenced to a term of 30 to 60 years. On appeal he contends that: (1) the trial court erroneously instructed the jury regarding voluntary manslaughter (Ill. Rev. Stat. 1973, ch. 38, par. 9-2(a)); and (2) he was not proved guilty beyond a reasonable doubt. We affirm. The following pertinent testimony was adduced at trial.
Rosie Garret, the victim's mother, testified. On March 25, 1976, she and various members of her family including the victim, Shelley Williams, were going to her sister's house. They rode in two cars. Shelley Williams drove one and she followed in the other. After turning a corner, Shelley stopped his car and Ms. Garret stopped also. She saw defendant getting off a bicycle in the street. Shelley got out of his car and called to defendant. Shelley and defendant talked for a moment and then Shelley called Ms. Garret over to them. Shelley asked her if defendant was the one who had cursed her on an earlier occasion. She responded that he was. Defendant apologized to Shelley who told him to apologize to his mother. As defendant turned toward Ms. Garret, defendant's brother-in-law, George Howard, ran down the street with a pistol and fired two shots but did not hit anyone. Defendant ran over to Howard, told him "he wasn't trying to shoot the m____ f____" and took the gun. Shelley threw up his hands and said he didn't want to fight. Defendant shot Shelley twice and Shelley fell, face down, near a fireplug. Defendant then took several steps toward Shelly and shot him again from a distance of five feet.
Defendant began to run but his escape was cut off by Clarence Williams, Shelley's brother, who drove Shelley's car into a wall, knocking defendant down. Clarence got out of the car and began kicking defendant in the head. Ms. Garret saw defendant's wife approaching with a bat and she took the bat from her. Ms. Garret repeatedly struck defendant with the bat until it hit a wall and shattered. Two policemen then pulled her off defendant. Defendant was immediately taken into custody.
In the meantime, Ms. Garret's brother had taken the gun from defendant and had run to his mother's house with it.
On cross-examination Ms. Garret testified that on March 2, 1976, she had an argument with defendant at her sister Sadie's and her brother Henry's birthday party. Defendant asked her to go out with him but she refused. Defendant was upset by this and said, "Bitch, what do you think, you're too good to go out with younger mens [sic]?" One of her younger sons was present and had told decedent what was said. She was also aware of an argument between members of her family and defendant's family that took place on March 24, 1976, but she was not present at that time.
Ms. Garret denied that anyone threatened defendant or approached him with bats or sticks. She stated that the conversation between Shelley and defendant was peaceful and not an argument until George Howard arrived.
Willie Williams testified. On March 25, 1976, he went to visit Ms. Garret at her home. After she received a phone call, he and other members of her family drove to her sister's house. After stopping at Ms. Garret's sister's house and then her mother's house, Shelley Williams went to get some beer with three others. Willie Williams followed in the second car with Ms. Garret. At one point Ms. Garret stopped and Willie could see Shelley get out of his car. Defendant was on the sidewalk riding a bicycle. Shelley spoke with defendant and then called Ms. Garret. Defendant attempted to leave but Shelley called him back. As Willie got out of the car he heard two shots and saw defendant take a gun from his brother-in-law, saying "Give me that gun, you are not trying to shoot the m____ f____" Defendant shot Shelley twice and Shelley fell. Defendant took several steps toward Shelley and shot him in the back.
Defendant ran down the street but was cut off when Clarence Williams drove Shelley's car into a wall. Willie did not see what happened afterward because he and several others were putting Shelley into a car.
On cross-examination Willie stated that the conversation between Shelley and defendant was peaceful until defendant threw up his hands to fight.
Clarence Williams, the victim's brother, testified. On March 25, 1976, he rode with his brother Shelley to his aunt's house. On the way they saw defendant on a bicycle and Shelley stopped the car. Shelley got out of the car and spoke to defendant. Defendant put his fists up but then put them down and spoke to Shelley. Shelley waved at his mother's car and his mother went to Shelley and spoke to the two. As Clarence was getting out of the car, George Howard walked up to him. Howard asked what was happening and Clarence told him he didn't know. Howard walked away and Clarence heard a shot. Clarence turned and saw Howard pointing a gun in the direction of a friend. Defendant ran over to Howard, said "Give me that gun, you are not trying to shoot the m____ f____" and took the gun. Defendant shot Shelley twice and he fell to the ground. Defendant then shot him a third time in the back and began running down the street. Clarence got in the car and pulled in front of defendant and struck a wall to cut off his retreat. Defendant ran into the side of the car and fell. Clarence got out of the car and kicked defendant in the face. Henry Williams, Clarence's uncle, disarmed defendant. Ms. Garret, Clarence's mother, came over and beat defendant with a bat. The police arrived and broke up the fight. At that time. Shelley was no longer there.
On cross-examination Clarence said that the conversation between Shelley and defendant was peaceful and that he did not see anyone hit defendant with bats or 2 x 4's before the shots were fired.
Chicago police investigator Geinosky testified that on March 25, 1976, while on duty, he received a radio broadcast directing him to the scene of the shooting. When he arrived he saw two groups of people, one near a white Cadillac and the other on the sidewalk. After speaking with Ms. Garret and her sister Catherine, Geinosky went to George Howard's home and arrested him. After placing Howard in the squad car, he returned to the area of the Cadillac and saw defendant on the ground bleeding heavily from his head. There was blood on the ground around defendant and also some slivers of wood. Another police officer gave Geinosky a five-shot revolver with all five shells expended.
On cross-examination Officer Geinosky testified that he did not see any 2 x 4's or bats at the scene.
Both sides stipulated that, if called, a firearms examiner of the Chicago Police Department would testify that after a comparison of two bullets recovered from the victim's body and a test bullet fired from the revolver recovered by the police, it was his professional ...