{ "id": 2961035, "name": "The People of the State of Illinois, Plaintiff-Appellee, v. Christ Bauman, Defendant-Appellant", "name_abbreviation": "People v. Bauman", "decision_date": "1975-12-05", "docket_number": "No. 61376", "first_page": "582", "last_page": "590", "citations": [ { "type": "official", "cite": "34 Ill. App. 3d 582" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "298 N.E.2d 372", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "12 Ill.App.3d 201", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2852592, 2851047 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/12/0201-02", "/ill-app-3d/12/0201-01" ] }, { "cite": "281 N.E.2d 389", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "4 Ill.App.3d 522", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2913623 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/4/0522-01" ] }, { "cite": "210 N.E.2d 212", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "33 Ill.2d 48", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2884726 ], "opinion_index": 0, "case_paths": [ "/ill-2d/33/0048-01" ] }, { "cite": "181 N.E.2d 74", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "24 Ill.2d 185", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2800172 ], "opinion_index": 0, "case_paths": [ "/ill-2d/24/0185-01" ] }, { "cite": "249 N.E.2d 282", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "110 Ill.App.2d 167", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1593963, 1593998 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/110/0167-02", "/ill-app-2d/110/0167-01" ] }, { "cite": "248 N.E.2d 108", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "42 Ill.2d 519", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2847775 ], "opinion_index": 0, "case_paths": [ "/ill-2d/42/0519-01" ] } ], "analysis": { "cardinality": 788, "char_count": 17634, "ocr_confidence": 0.742, "pagerank": { "raw": 2.229126836772064e-07, "percentile": 0.7787942463054796 }, "sha256": "7b7c3e1c61343990b604c546c50e583b7262d57271f4d06caa1d0c851b881c0e", "simhash": "1:80d721989b04e5b0", "word_count": 2898 }, "last_updated": "2023-07-14T14:50:26.295263+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "The People of the State of Illinois, Plaintiff-Appellee, v. Christ Bauman, Defendant-Appellant." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE BURKE\ndelivered the opinion of the court:\nChrist Bauman was indicted for murder in violation of section 9 \u2014 1 of the Criminal Code. (Ill. Rev. Stat. 1973, eh. 38, par. 9 \u2014 1.) Defend\u00e1nt was found guilty at a bench trial and sentenced to a term of not less, than 14 years and not more than 14 years and one day. Defendant con-, tends on appeal: (1) that the trial court erred in allowing the testimony1 of a witness who had been in the courtroom during the testimony of other witnesses in violation of the court\u2019s order excluding witnesses; and (2) that the evidence did not establish guilt of murder beyond a reasonable doubt.\nOn April 15, 1973, a party was held at the home of William and Judy' Palmer to celebrate tire christening of the son of James and Mary Bauman. The Palmer apartment is located at 3645 South Hamilton in Chi-1 cago. James Bauman is defendant\u2019s brother. Judy Palmer is Mary Bauman\u2019s sister. Also present at the party was Joan Marasovich, who is Mary Bauman\u2019s sister. Joan Marasovich was having an affair with James Bauman, Mary\u2019s husband. Defendant attended the party with his fiancee, Kathleen Pollard, whom defendant subsequently married. The record discloses that the celebrants were excessively drinking alcoholic beverages.\nIt was stipulated that a post-mortem examination disclosed that the body of William Palmer, the deceased, contained 282.0 milligrams percent alcohol. It was also stipulated that William Palmer died as a result of a bullet wound to his chest, and th\u00e1t the bullet removed from the de-' ceased was fired from a .25-caliber automatic pistol.\nMary Bauman testified on behalf of the State. She began her account of' the shooting incident by pointing to' events which \u2022 commenced at approximately 11:30 p.m. Mary Bauman saw the defendant beating and kicking his fiancee, Kathleen Pollard, in the yard of the Palmer apartment building. Mary Bauman, James Bauman and William Palmer pro-, ceeded to the yard and street area. James Bauman and William Palmer, advanced towards the defendant despite defendant\u2019s pleas, \u201cStay away from me. Get away from me. Leave me alone.\u201d William Palmer attempted to calm defendant. Palmer and James Bauman backed defendant up against an automobile parked along the street, Mary Bauman saw the defendant fire one shot into the street pavement. She then saw de-. fendant shoot William Palmer at an arm\u2019s length distance. Defendant allegedly fired another shot at his brother James.\nDuring cross-examin\u00e1tion, Mary Bauman testified that she purchased $75 worth of liquor and that the celebrants had been drinking during most of the day. She admitted that a fight broke out between herself and her sister, Joan Marasovich, in the apartment at approximately 10:30 p.m. However, Mary Bauman claimed that she could not remember the events surrounding the fight with her sister Joan. Mary Bauman stated that she believed that defendant yelled, \u201cI am going to kill you.\u201d It was stipulated by the State and the defendant, however, that Mary Bauman did not inform the police in a written statement that defendant said, \u201cI am going to kill you,\u201d at the scene of the shooting.\nJohn Furmanek, a Chicago police officer, testified that he arrived at 3645 South Hamilton and found the deceased lying in the middle of the street. After Mary Bauman entered the squad car, Furmanek testified that when the defendant was arrested, he \u201cwas crying and a nervous wreck.\u201d Defendant\u2019s emotional instability intensified when informed that William Palmer was dead. Defendant led the police to a gangway between two garages where a .25-caliber automatic pistol was buried. Defendant stated, \u201cYes, I killed him. Look at what they did to me. They turned me into an animal.\u201d Defendant also told Furmanek that the shooting was an accident and that he did not intend to kill anybody. Another police officer found a shell casing on the street.\nKathleen (Pollard) Bauman testified on behalf of the defendant. Approximately an hour before the shooting, 10:30 p.m., Mary Bauman and her sister, Joan Marasovich, were physically fighting with each other on the floor of the apartment. Kathleen pulled Joan from the fight and took her out of the apartment. When Kathleen returned', she found that James \u201chad Christ [the defendant] by the throat.\u201d William Palmer attempted to separate the two brothers. The defendant did not threaten or attack anyone. He departed for his home immediately. Kathleen did not accompany the defendant, her fiance, because she could not find her purse.\nThe defendant returned to pick up Kathleen approximately 30 minutes later but did not enter the Palmer apartment. Defendant told Kathleen that she was lying about her lost purse. An argument ensued which resulted in Kathleen being slapped to the ground. Kathleen testified that she was too intoxicated to regain her balance. Joan Marasovich screamed to the' others that defendant was beating Kathleen. William Palmer and James Bauman hurried from the apartment, and immediately started to stalk the defendant. As defendant backed up, he said, \u201cI don\u2019t want him [James] near me. Stay away from me.\u201d James was hollering, but William was speaking calmly. Defendant pulled a revolver and fired a shot into the street pavement. \u201cNow stay away from me,\u201d he said, \u201cI mean it. Keep him away from me,\u201d Prior to the second shot which fatally wounded William Palmer, defendant raised his right hand and said, \u201cStay away from me. Don\u2019t touch me. Leave me alone.\u201d\nKathleen testified that Joan Marasovich was outside the apartment.at the time of the shooting. However, Kathleen did not see Mary Bauman come out of the building until after the shooting occurred. Only two shots were fired. Kathleen did not hear defendant say, \u201cI will kill you.\u201d\nDefendant testified that he and William Palmer, the deceased, had been friends for approximately three years. The. defendant also stated that, he and his brother James were normally on good terms. However, James is inclined to violent behavior when he is intoxicated. Defendant is afraid of James when he is drinking because James is strong, muscular, and 25 pounds, heavier than defendant.\nAnimosity between James and the defendant grew from the circumstances surrounding the fight between Joan and Mary. James wanted, to \u201ckick the so-and-so\u201d out of Joan for starting the fight with hjs wife Mary. The defendant physically deterred James from attacking Joan. James then grabbed defendant by the throat and said, \u201cI will kill you.\u201d In order to break away from James, defendant stuck his fingers in James\u2019 eye. After a struggle, defendant finally released himself from James and departed.\nWhen defendant returned to pick up Kathleen, he \u201cwas not angry at anyone, but was mad over the events of the evening and how a party could turn into a brawling mess.\u201d Defendant was also upset because Kathleen lost her purse which forced him to return to the Palmer apartment. After the argument between Kathleen and the defendant, William Palmer came out of the apartment and attempted to calm the defendant. . Palmer said, \u201cTake it easy, Christ, relax. There isn\u2019t any need for all this.\u201d Christ Bauman, the defendant, replied, \u201cOh, I just want to get her and. get out of here.\u201d James rushed to a point directly behind William Palmer hollering, \u201cYou, M.F.er.\u201d Defendant retreated to automobiles parked along the street and drew his revolver. Defendant\u2019s, intent was to . drive away from the scene in his automobile in order to avoid a fight with James. William Palmer walked directly in front of defendant and said, \u201cHey, take it easy, take it easy.\u201d Defendant replied, \u201cI\u2019m not shooting anybody. J just don\u2019t want him [James] near me. I don\u2019t want him around me.\u201d Palmer said, \u201cCome on, take. it easy. Calm down. Calm down.\u201d Defendant replied, \u201cDamn it, I mean it. I don\u2019t want him near me. Keep him away from me.\u201d James crossed the street and moved next to a parked automobile in order to circle behind the defendant. Defendant fired a shot info the street pavement as a warning when James advanced towards him; from behind a parked car. Defendant feared James and attempted to keep him in sight at all times. Defendant then raised his arm and the revolver discharged accidentally. William Palmer stumbled a few steps and fell. Defendant turned to James and said, \"My God, what have you made me do? What has happened? You have turned me into an animal.\u201d\nDefendant stated that he did not intend to kill anybody, nor did he threaten to kill anybody on the night of the shooting. Only two shots were fired. After the second shot, defendant cried and \"shook all over\u201d in bewilderment. After burying the revolver in fear, defendant returned to the street and stopped the police squad car in order to surrender himself.\nJoan Marasovich testified in rebuttal over defendant\u2019s objection. She attempted to intercede on Kathleen\u2019s behalf during the argument between Kathleen and defendant at approximately 11:30 p.m. outside the Palmer apartment building. Defendant allegedly pointed his revolver at her and said, \u201cJoan, I like you. Do me a favor. Get away from me right now.\u201d' While returning to the apartment, Joan said to William Palmer, \u201cLet\u2019s both go in the house. He has got a gun.\u201d\nOn cross-examination, Joan stated that she did not speak with any police officers nor with any State\u2019s Attorney about the incident after the night of the shooting. She did, however, tell two State\u2019s Attorneys on the day of trial that defendant pointed a revolver at her. Joan Marasovich was inside the Palmer apartment at the time of the shooting.\nJohn Olson, a Chicago police officer, was called in surrebuttal on behalf of the defendant. Olson spoke with Joan Marasovich at her home as part of his investigation of the homicide. Joan Marasovich did not inform Olson at that time that the defendant pointed a gun at her on the night of the shooting.\nKathleen Bauman took the stand for a second time in surrebuttal on behalf of the defendant. She stated that defendant never pointed a revolver at Joan Marasovich. Kathleen first saw the revolver when defendant drew it against the advancing Palmer and James Bauman.\nDefendant first contends that the trial court erred in allowing Joan Marasovich to testify in rebuttal after she had been in the courtroom in violation of the court\u2019s order excluding witnesses. The State responds that no order excluding witnesses was entered by the trial court. Contrary to the State\u2019s argument; the record reflects that the State consented to defendant\u2019s motion to exclude witnesses. The trial court affirmed the motion.\nIt is within the sound discretion of the trial court to allow a witness who has violated an exclusion order to testify in rebuttal. (People v. Gibson, 42 Ill.2d 519, 248 N.E.2d 108; People v. Horne, 110 Ill.App.2d 167, 249 N.E.2d 282.) The trial court\u2019s decision will not be disturbed unless a clear abuse or prejudice to the defendant is shown. (People v. Chennault, 24 Ill.2d 185, 181 N.E.2d 74; People v. Nelson, 33 Ill.2d 48, 210 N.E.2d 212.) In the instant case, Joan Marasovich informed the court that she was in the courtroom for only an hour before she was called to testify. Defense counsel was allowed to interview Marasovich before she testified in rebuttal. Marasovich\u2019s testimony was confined to the rebuttal of defendant\u2019s statement that he initially exhibited his revolver when he was attacked by James Bauman. Moreover, the defendant was able to discredit Marasovich\u2019s testimony through cross-examination and the surrebuttal testimony of Officer Olson and Kathleen Bauman. The trial court\u2019s decision cannot be held to be reversible error because the defendant was not prejudiced.\nDefendant\u2019s second contention is that the evidence failed to prove guilt of murder beyond a reasonable doubt. Defendant seeks a reversal but contends in the alternative that a reduction in the degree of the offense from murder to the included offense of involuntary manslaughter would be appropriate.\nMurder and the lesser included offense of involuntary manslaughter are distinguished only in terms of the mental state required. (See Ill. Ann, Stat. ch. 38, \u00a79 \u2014 3, Committee Comments (Smith-Hurd 1972).) Murder is the killing of an individual without lawful justification where, in performing the acts which caused death, the person either intends to kill or do great bodily harm, or knows that such acts create a strong probability of death or great bodily harm. (Ill. Rev. Stat. 1971, ch. 38, par. 9 \u2014 1.) Involuntary manslaughter is the killing of an individual without lawful justification where the acts, whether lawful or unlawful, which caused the death are such that are likely to cause death or great bodily harm to some individual and the acts are performed recklessly. Ill. Rev. Stat. 1971, ch. 38, par. 9 \u2014 3.\nMurder requires an intent to kill or do great bodily harm, or knowledge that the acts create a strong probability of such a result, while the conviction for involuntary manslaughter requires only reckless conduct which causes death. Reckless is defined in our Criminal Code as follows: Involuntary manslaughter requires no felonious intent and the only mental state required is the conscious disregard of a substantial and unjustifiable risk. People v. Bembroy, 4 Ill.App.3d 522, 281 N.E.2d 389.\n\u201c4 \u2014 6 RECKLESSNESS. A person is reckless or acts recklessly, when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense; and such disregard constitutes a gross \"deviation from the standard of care which a reasonable person would exercise in the situation.\u201d (Ill. Rev. Stat. 1971, ch. 38, par. 4 \u2014 6.)\nIn the case at bar, defendant stated that he did not intend to kill James Bauman or William Palmer. Violent behavior characterized the conduct of most of the celebrants at the christening party. Defendant was fearful and disgusted with the general tenor of the violence which was caused in part by the intoxicated condition of the participants. Approximately an hour prior to the shooting of William Palmer, defendant had to physically tear himself away from his brother, James Bauman, who had threatened to kill him. Defendant\u2019s fear culminated when James attempted to attack him in the street. Defendant pointed a revolver in the general direction of William Palmer and James Bauman. Defendant bore no ill will towards Palmer. The pointing of a loaded revolver at another is such a gross deviation from the standard of care which a reasonable person would exercise that it constitutes recklessness. (People v. Bembroy, 4 Ill.App.3d 522, 281 N.E.2d 389.) The evidence indicates that the fatal shooting of WiUiam Palmer stemmed from defendant\u2019s reckless behavior in attempting to prevent injury from being inflicted on him. Defendant\u2019s conduct constituted a conscious disregard of the substantial risk that his friend, WiUiam Palmer, would be kiUed.\nThe defendant\u2019s testimony that the shooting was an accident is consistent with the statement he gave the pohce immediately after he was arrested shortly after the shooting. He was corroborated by his wife, whose interest is apparent, but whose testimony is not to be disregarded as a matter of law because of that interest. The crucial evidence against the defendant\u2019s version is the testimony of Mary Bauman, who testified, \u201cI believe that I heard Chris yell, 1 am going to kiU you.\u2019\u201d (Emphasis added.) That testimony is equivocal. Significantly, in her written statement she never told the police that the defendant said he was going to kfll anybody. Moreover, Joan Marasovich was on the street at the time of the shooting but she did not testify that she heard defendant say, \u201cI am going to kfll you.\u201d Also, defendant\u2019s wife, Kathleen, testified that Mary Bauman was inside the Palmer apartment at the time of the shooting. Mary Bauman also admitted that she could not remember the fight she had with her sister, Joan Marasovich. Furthermore, Mary Bauman testified that the defendant was backing away from his brother and the deceased after telling them to get away from him and to leave him alone. WhUe we recognize that the credibility of witnesses is to be determined by the trier of fact, we conclude that this evidence as a whole is insufficient to prove the defendant guilty of murder beyond a reasonable doubt.\nThe evidence, however, does prove defendant guilty of involuntary manslaughter beyond a reasonable doubt. Under the power granted by Supreme Court Rule 615(b)(3), we reduce the degree of the offense for which defendant was convicted from murder to involuntary manslaughter. (Ill. Rev. Stat. 1971, ch. 110A, par. 615(b)(3); People v. Felton, 12 Ill.App.3d 201, 298 N.E.2d 372 (abstract opinion).) Pursuant to Supreme Court Rule 615(b)(4), we reduce defendant\u2019s sentence of a term of not less than 3 years and not more than 10 years\u2019 imprisonment.\nThe judgment is therefore modified to adjudge the defendant guilty of involuntary manslaughter and to reduce his sentence to a term of not less than 3 years and not more than 10 years\u2019 imprisonment and is affirmed as modified.\nJudgment affirmed as modified..\nGOLDBERG and EGAN, JJ., concur.", "type": "majority", "author": "Mr. PRESIDING JUSTICE BURKE" } ], "attorneys": [ "Paul Bradley and Allen L. Wiederer, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Bernard Carey, State's Attorney, of Chicago (Laurence J. Bolon and Michael E. Shabat, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. Christ Bauman, Defendant-Appellant.\n(No. 61376;\nFirst District (1st Division)\nDecember 5, 1975.\nPaul Bradley and Allen L. Wiederer, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nBernard Carey, State's Attorney, of Chicago (Laurence J. Bolon and Michael E. Shabat, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0582-01", "first_page_order": 608, "last_page_order": 616 }