APPEAL from the Circuit Court of Williamson County; the Hon.
ROBERT L. LANSDEN, Judge, presiding.
MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
The defendant, George Farmer, was found guilty of murder after a jury trial in the Circuit Court of Williamson County in 1975. That conviction was reversed by this court in People v. Farmer (1977), 50 Ill. App.3d 111, 365 N.E.2d 177, and remanded for a new trial. We reversed because of the failure of the trial court to give tendered instructions on involuntary manslaughter. In 1978, the defendant was found guilty after a bench trial in Williamson County and sentenced to a minimum of 15 years and a maximum of 16 years in the Department of Corrections. For the reasons set out below, we affirm the defendant's conviction.
The defendant shot the victim, Charles Darter, on September 16, 1973. The only questions raised by the defendant relate to the sufficiency of the State's evidence and certain procedural rulings made by the trial court. The facts are set out in our earlier opinion and need be repeated here only insofar as the evidence at the second trial differs from that adduced at the first trial or is necessary for an understanding of the issues raised on this appeal.
In the early evening of September 16, 1973, Charles Darter drove to Farmer's house apparently to meet with Farmer's daughter, Marlene. Farmer had previously been having problems with his daughter, who allegedly had been sexually assaulted by several males. When Darter arrived at the Farmer residence Darter honked his horn. Farmer heard the car horn outside the house. At that time, the defendant was allegedly cleaning and oiling a .22 caliber pistol which he used to kill rabbits while employed at the city cemetery.
Farmer emerged from his house at 704 West Fourth Street in Johnston City, Illinois, with his pistol. He approached the car that was parked in front of his house and spoke with Darter. Darter asked Farmer if Marlene was at home. Farmer stated that she was not at home. Darter said that he had previously taken Marlene to Energy, Illinois. Farmer, who had not seen Marlene since the previous evening, asked Darter to take him to Marlene. Darter said that he could not do that.
After Darter said that he could not take Farmer to Marlene, the defendant testified that Darter inquired about the pistol, which the defendant had slipped into his waistband. Defendant took the gun from his waistband and pointed it at Darter. He testified that as he pointed the pistol at Darter he pulled back the hammer which slipped off his thumb because it was oily. The pistol discharged and the bullet hit Darter in the head, killing him. Defendant testified that he could not remember whether or not he had his finger on the trigger when the gun discharged.
After the gun discharged, the defendant went to the rear of his house and disposed of the pistol. The defendant then made two telephone calls, one to Jesse Farmer, his brother, the other to Rosetta Mandrell (formerly Rosetta Thome). During both conversations the defendant stated that he had shot Darter.
Subsequent to his conversation with his brother, Jesse Farmer drove to the defendant's house. Jesse Farmer told the defendant that he should go to the police station and tell them what had happened. The defendant agreed, and Jesse Farmer started to drive him to the police station. On the way to the station the defendant said that he had buried the gun in his yard and requested to be taken back to his house. Jesse Farmer complied with the defendant's request. After further conversation with his brother, defendant agreed to go to the police station.
At the time of this incident Jesse Farmer was an alderman of Johnston City. As an alderman he was empowered to act as a peace officer on request of the chief of police. It does not appear that any such request had been made in relation to his brother's case.
At the police station, defendant was questioned by the Johnston City chief of police, Tom Kirkpatrick. He was not given Miranda warnings prior to being questioned. Defendant stated that the gun was in his backyard and gave his consent to a search of his property indicating a search warrant was not necessary.
Subsequently, Chief Kirkpatrick went to defendant's home accompanied by Officer Bennie Vick and Officer Frank Lappin. Officer Lappin found a .22-caliber pistol under a doghouse in defendant's backyard. Vick took custody of the pistol and inspected and tested it.
The next day, September 17, 1973, Deputy Sheriff Bill Riggin obtained a written waiver of Miranda warnings from the defendant. Defendant also signed a consent form which authorized the police to search defendant's property.
Prior to defendant's first trial the defendant moved to suppress his statements and to suppress the pistol and ammunition. The court suppressed the statement made to the police while defendant was at the Johnston City police station but not the statements made to Rosetta Mandrell and to Jesse Farmer. The court found that the statements made to Rosetta Mandrell were free and voluntary with no need for Miranda warnings because of her status as a private citizen. The statements made to Jesse Farmer were also admitted on the basis that Jesse Farmer was acting as a private citizen and not as a peace officer when he talked to the defendant after the killing.
The court found that the gun would inevitably have been discovered by the police and should therefore not be excluded because of the tainted statement to the police. The court also ...