People v. Stowers, Gen. No. 55017

• Court: Appellate Court of Illinois
• Writing for the Court: DRUCKER; ENGLISH, P.J., and LORENZ
• Citation: People v. Stowers, 273 N.E.2d 493, 133 Ill.App.2d 627 (Ill. App. 1971)
• Decision Date: 09 July 1971
• Docket Number: Gen. No. 55017
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Willie C. STOWERS, Defendant-Appellant.

Page 493

273 N.E.2d 493

133 Ill.App.2d 627

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Willie C. STOWERS, Defendant-Appellant.

Gen. No. 55017.

Appellate Court of Illinois, First District, Fifth Division.

July 9, 1971.

Rehearing Denied Aug. 4, 1971.

Julius Lucius Echeles, Chicago, for defendant-appellant.

Edward V. Hanrahan, State's Atty. of Cook County, Chicago, for plaintiff-appellee; Robert A. Novelle, Michael J. Goldstein, Asst. State's Attys., of counsel.

DRUCKER, Justice.

Defendant was indicted for the murder of James Willoughby (hereinafter 'deceased'). After a bench trial defendant was convicted of voluntary manslaughter and was sentenced to a term of one to fifteen years. On appeal defendant contends: (1) that there was no evidence to support his conviction of voluntary manslaughter; (2) that sufficient time intervened between the provocation and the shooting to permit the voice of reason to be heard; (3) that if any crime was committed it was murder and not voluntary manslaughter; and (4) that there was insufficient evidence to establish that the cause of deceased's death was from a gunshot would inflicted by defendant.

Testimony of Shirley Banks, for the State:

During the evening of October 26, 1968, she accompanied Rosie Childs and deceased to a party at 6020 Carpenter Street, Chicago. She had known deceased for about six months. The defendant was at the party. She left the party at approximately 1:30 A.M. on October 27, 1968, in the company of Mrs. Childs and deceased. She and Mrs. Childs got into deceased's car which was parked across the street from 6020 Carpenter, but deceased stopped to speak with a man. While deceased was talking 'the defendant came up and pushed both of them apart, he pushed the other man down.' This other man then got up and ran away. Deceased was not fighting with this other man. After defendant pushed deceased, defendant ran across the street and deceased got into the driver's seat of his car. Defendant them came back to the car and told deceased 'I'm going to kill you.' Deceased said, 'Don't shoot me.' Defendant pointed his gun low and shot deceased. Defendant said, 'I'm going to shoot this black mother--again, I ought to kill all three of you.' The witness told defendant, 'Don't shoot him no more because you already shot him once.' She noticed that defendant appeared to be cut on the forehead, and 'blood was running down his face.'

On cross-examination the witness testified that after defendant pushed the deceased, defendant ran across the street to the house next door to where the party was held, threw off his jacket, spoke to a stranger on the steps and ran back to the car to fire at deceased. Defendant spoke to this man on the steps 'no longer than it takes to throw off his jacket and come back across the street.' In the meantime deceased was looking for his car keys. 'There wasn't that much time elapsed since the boy (defendant) ran across the street.'

Before the Grand Jury she said, 'Willoughby (deceased) was hit with a can of beer.' However, on cross-examination she said deceased was not hit with a beer can. She did see a can of beer thrown.

She never saw defendant fall to the ground. After the shooting deceased drove to the hospital.

Testimony of Rosie Childs, for the State:

Her testimony was substantially the same as that of Shirley Banks. After defendant had pushed deceased, deceased immediately entered the car 'fixing to start it up' when defendant came back over from crossing the street and shot deceased. The lapse in time between the pushing incident and the shooting was 'about two minutes.' At the time of the shooting she observed blood coming down defendant's face.

She did not see defendant on the ground at any time. Defendant shot deceased in the side.

Testimony of Thomas Ptak, for the defense:

He is a police detective in the City of Chicago. On October 28, 1968, Shirley Banks told him that she saw a man throw a can of beer at defendant, striking defendant in the head. She did not know who threw the can of beer, but it was not deceased.

Testimony of Rose Smith, for the defense:

She is defendant's girl friend. On October 26, 1968, she and defendant went to a party at 6020 Carpenter around midnight. Upon leaving the party with defendant, defendant was assaulted by deceased and a man named Curry. Curry and defendant exchanged blows. 'And then this fellow Willoughby hit Mr. Stowers in the head with a can of beer.' Defendant fell to the ground and stayed there until she helped him walk to the hospital. She did not know where deceased went.

Defendant did not shoot deceased and he never had a gun in his possession on October 27, 1968.

On cross-examination she testified that she did not hear any loud noises or explosions during the incident. She was with defendant at the time the police came to defendant's home. The police told defendant that 'they want some woman to see him to identify him for shooting Willoughby.' She did not say anything to the police at this time.

Testimony of Susan Pruitt, for the defense:

Defendant is her cousin. She lives at 6016 Carpenter, next door to where the party was held. Around 1:30 A.M. on October 27, 1968, she heard a gun fired. She went to the front porch where she observed defendant lying on the ground. She did not go to help him nor did she call the police. She thought defendant was dead.

Testimony of Edith Stowers, for the defense:

She is defendant's mother. Defendant's Exhibit 1 is a bill from Englewood Hospital for $15.50 for the treatment of defendant.

Testimony of Willie Stowers, defendant, in his own behalf:

On October 27, 1968, he attended a party with Rose Smith at 6020 South Carpenter. When he went to the party he did not have a gun with him. At about 1:30 A.M. he and Rose Smith left the party. As he was walking out of the front door James Willoughby and another man began pushing him. The other man hit him in the face, he hit this other man in the face and this man fell over the porch and came back at him with a board. The fight continued in the street until this other man ran away. Then as the witness went back to get Rose, deceased hit him in the head with a can of beer. 'That is all I remember, I fell down.' He did not remember walking to the hospital with Rose until she told him that is what they did. His injury required stitches. After he was released from the hospital he went home. He was arrested during the early morning of October 27, 1968. He denied that he shot the deceased.

Testimony of Thomas Ptak, for the State, in rebuttal:

He arrested defendant during the morning hours of October 27, 1968. After he advised defendant of his constitutional rights defendant said 'that James Willoughby was the one who hit him with the beer can and after that he doesn't remember a thing.'

It was stipulated between the parties that if called to testify Dr. Patrick Garry, a pathologist with the Cook County Coroner's Office, would testify that on November 8, 1968, he examined the remains of deceased and would state that deceased died of a bullet wound of the abdomen, transverse colon.

It was also stipulated that if Alphonse Willoughby were called to testify he would state that he was the son of deceased; that deceased was fifty-one years old on October 27, 1968; that he saw deceased on the morning of October 26, 1968; that deceased was in good health with no physical or mental defects; and that when he again saw deceased on November 8, 1968, deceased was dead.

It was further stipulated that the records of the Englewood Hospital showed that defendant had a laceration above the head which was treated and, 'The patient states he was hit in the head with a beer can.'

OPINION

Defendant contends that there was no evidence to support his conviction for voluntary manslaughter. He argues that there was no evidence of 'sudden and intense passion resulting from serious provocation.' Voluntary manslaughter is defined in Section 9--2 of the Criminal Code, Ill.Rev.Stat. 1967, ch. 38, § 9--2, as follows:

(a) A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:

(1) The individual killed, * * *.

Serious provocation is conduct sufficient to excite an intense passion in a reasonable person.

In the instant case defendant denied that he shot deceased. However, defendant did testify that deceased and another man pushed him as he left the party with Rose; that he fought with this other man; that deceased hit him in the forehead with a can of beer; that he fell down and remembered nothing that happened thereafter; and that his forehead wound required stitches.

Defendant's assertion that deceased hit him with a beer can was corroborated by Rose Smith. Moreover, it was stipulated that on the night of the shooting defendant was treated at the Englewood Hospital for a 'laceration of the head.'

That defendant received a head wound was also testified to by the State's witnesses, Shirley Banks and Rosie Childs. They were present when defendant shot deceased, and they both testified that when defendant came over to deceased's car he appeared to be cut on his head since blood was running down his face.

The sufficiency of the provocation to cause sudden and intense passion is a matter to be determined by the trier of fact. People v. Binion, 267 N.E.2d 715 (Ill.App. 1971) and People v. Hurst, 42 Ill.2d 217, 247 N.E.2d 614. We find that defendant's claim that he was attacked by deceased and hit in the head with a beer can, if believed by the trial court, was sufficient provocation to arouse a sudden and intense passion in defendant.

Defendant next claims that sufficient time intervened between the provocation and the shooting to permit passions to cool and the voice of reason to be heard. Defendant cites People v. McMurry, 64 Ill.App.2d 248, 212 N.E.2d 7, an...