delivered the opinion of the court:
DеWayne Moore was convicted of murder, armed robbery and armed violence after a jury trial in the circuit court of Cook County. He was sentenced to concurrent terms of 40 years for murder and 15 years for еach of the other offenses. The appellate court, with one justice dissenting, reversed the judgment of the circuit court and remanded the cause for a new trial, on the ground that it was reversible error for the trial court to refuse to give a voluntary-manslaughter instruction that the defendant had tendered. (
At the trial, Mrs. Bok Kim testified through a Korean intеrpreter that she was the wife of Chong Kim, who owned the Sun Wig Shop in Chicago. She said that on November 24, 1978, at about 4 p.m., she was working in the store while her husband, her three young children and her brother-in-law were in the back room. The defendant entered the store and she waited on him. While she was waiting on him, three other customers came in, and her brother-in-law, Hun Chong Kim, came from the back room and assisted them. Two more customers entered, but sоon all of the customers had left the store except the defendant, who was inquiring about necklaces and sunglasses. The defendant then told the brother-in-law to stand aside, and drew a gun from his coat pocket. The defendant took jewelry from the showcases. Mrs. Kim allowed him to take the merchandise, but then grabbed his arm from behind, struggled with him, and called to her husband for help. When her husband came from the back room, the defendant shot him from a distance of five or six feet. As Mr. Kim fell forward, he grabbed the defendant’s arm and the defendant fired again. Mrs. Kim shouted for help, and two passersby came in the store and held the defendant until police
Hun Chong Kim testified through an interpreter that he first saw the defendant when his sister-in-law called him from the back room to assist customers. He said that the defendant drew a gun and, after threatening Mrs. Kim and him, pushed him aside and took jewelry from the showcase. Mrs. Kim called for help and when her husband responded, the defendant fired at him from a distance of five or six feet. Hun Chong Kim said that two shots were fired. Neither his brother nor his sister-in-law had touched the gun.
Chicago pоlice officers Ronald Mainellis and Mary Dahl testified that while on patrol they were flagged down by a man who told them that a man in the Kims’ store had a gun. As they pulled up in front of the store, the victim, who was bleeding, told them that he had been shot. Officer Dahl radioed for assistance, while Officer Mainellis entered the store, where he saw the defendant struggling with Mrs. Kim and two men. Mrs. Kim told him that the defendant had shot her husband.
The defendant was handcuffed and placed in the squad car. Officer Dahl attended to the victim and asked him if the defendant had shot him. The victim said yes. A young boy handed Officer Mainellis a gun the boy had found in the store’s doorway area. At the police station, а search of the defendant produced four necklaces, three watches, three rings, two bracelets, a cigarette lighter, automobile keys and $3.35.
Mr. Kim died of his wound. Dr. Robert J. Stein, chief medical examiner of Cook County, testified that an autopsy showed that the cause of death was a bullet wound to the abdomen, which also involved the lung, liver and spleen. Dr. Stein examined the victim’s clothes but did not detect powder burns or stipplings round the bullet hole in the fabric.
Donald Gunnell, a technician of the Chicago police department
Officer Robert Bunk testified that he observed an automobile illegally parked in an alley behind 3529 South Halsted Street. (The address of the Sun Wig Shop was 3515 South Halsted Street, and the defendant did not live in the vicinity of the shop.) Officer Bunk testified that a vehicle check revealed that the car was registered to the defendant. Officer Bunk said that a set of keys taken from the defendant that Bunk received from Officer Mainellis at the police station fit the auto’s locks.
The defendant testified and claimed that the People’s witnesses had lied. He said that when he entered the store he already had the jewelry found on his person at the police station. He said that he did not have a gun when he entered the store. In the store, hе testified, he spoke with Mrs. Kim about having his initials inscribed upon a cigarette lighter he owned. She agreed to put the initials on the lighter without charge if he would purchase a pair of sunglasses, he testified, and he was leaving to get the cigarette lighter from his car when Mrs. Kim held him and began screaming in Korean. The defendant said that Mr. Kim then came from the back room with a gun in his hand and approached the defendant. According to the defendant, he and Mr. Kim then struggled. The defendant tried to knock the gun from Kim’s hand, fearing that he would be shot, but the gun went off twice while in Kim’s hand. The defendant also said that he had parked his car at a curb on Halsted Street, not in an allеy.
Officer Thomas Quinn testified that he was assigned to investigate the killing of Mr. Kim. He related that the defendant spoke to him about the killing after he had
The defendant had been charged by information with murder (including felony murder), armed robbery and armed violence. The jury was instructed as to each offensе. The trial court refused, however, to give an instruction on voluntary manslaughter tendered by the defendant, but it did give an instruction on the justifiable use of force. The State had objected to the voluntary-manslaughter instruction оn the ground that it involved intentional or knowing killing, and the defendant’s theory was that the killing was accidental. The court said in refusing the instruction that the evidence did “not lend itself to voluntary manslaughter * * * >>
As has been stated, the apрellate court reversed the conviction on the ground that the trial court erred in refusing to give the voluntary-manslaughter instruction. The court noted that the instruction on the justifiable use of force was given, and that seсtion 9 — 2(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 2(b)) provides that one who intentionally or knowingly kills commits voluntary manslaughter if at the time of the killing he unreasonably believes the circumstances to be such that, if they existed, wоuld justify or exonerate the killing. The court concluded:
“After carefully reviewing the record, we believe that the trial court erred in refusing the tendered instruction. The jury could have concluded from all the evidencе before it, despite some inconsistencies in defendant’s testimony, that defendant killed Kim in the unreasonable beliefthat he was justified in doing so. Since the evidence was conflicting, it was for the jury, with the benefit of proрer instructions, to decide whether the killing was murder or manslaughter or justified as self-defense. [Citation.] We, therefore, must reverse and remand this cause for a new trial.” 102 Ill. App. 3d 651 , 661.
We judge that the appellate court erred in reversing the conviction. We need not decide whether the trial court should have given the instruction, because, as the dissenting justice in the appellate court observed (102 Bl. App. 3d 651, 661-62, it is clear that if it was error, it was harmless error.
A refusal to give an instruction will be held to be harmless and not a ground for reversal where it can be said that the result of the trial would not have been different if the instruction had been given. People v. Diekelmann (1937),
Here the defendant was charged and the jury was instructed under the felony-murder rule embodied in section 9 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1). That section provides in part:
“(a) A person who kills an individual without lawful justification commits murder if, in performing the acts which сause the death:
(1) He either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; or
(2) He knows that such acts create a strong probability оf death or great bodily harm to that individual or another; or
(3) He is attempting or committing a forcible felony other than voluntary manslaughter.” (Emphasis added.)
To be convicted of murder under the felony-murder doctrine, the accused need not have intended to kill. (People v. Trinkle (1977),
The jury, acting on the overwhelming weight of the evidence, found the defendant guilty of armed robbery, a forcible felony. Under those circumstances it made no difference whether the defendant killed the victim knowingly or intentionally but with an unreasonable belief that the killing was justified as self-defense. Even with an instruction as to voluntary manslaughter, the jury, acting on the clear evidence that the defendant was committing a forcible felony, could not have convicted the defendant of less than murder. (See People v. Payne (1935),
For the reasons given, the judgment of the appellate court is reversed and the judgment of the circuit court is affirmed.
Appellate court reversed; circuit court affirmed.