*1 the State members the four 29th; two only scheduled for was because the 29th on to be present were able Board of Elections 30th. 29th to from adjourned was meeting The winter storm. adjournment an to such an objection indicate does not The record with agree the 30th. held on The hearing the petitioner. the jurisdiction objection merit to Williams’ there is no trial court that granted relief contention find no merit of the Board. We alleged specifically objections of the pleadings. the scope not within and fraudulent. were false that the attestations Sangamon court of the circuit stated, the judgment tire reasons For direc- with that court is remanded and this cause is reversed County Board of the State the order affirming judgment to enter a tions Elections. directions.
Reversed remanded with GREEN, TRAPP, concur. J., P. J., v. RICH- ILLINOIS, Plaintiff-Appellee, PEOPLE THE OF THE STATE OF PARR, Defendant-Appellant. ARD LYNN 74-343 Fifth No. District Opinion January 1976. filed *2 KARNS, J., concurring part P. dissenting part. and Carr, Stephen Hurley Appellate and Ann both P. L. of State Defender’s Office, Vernon, appellant. of Mt. Allison, Jr., (Bruce
Dale Attorney, A. State’s of D. Mt. Carmel Irish and Anderson, Association, Attorneys counsel), Robert both of Illinois State’s of J. People. for the
Mr. delivered the the EBERSPACHER of opinion court: JUSTICE defendant, This is Parr, an Lynn the Richard from a appeál by judg- ment of conviction court of entered circuit Wabash on a by County verdict charge and the manslaughter guilty sentence three' to nine years’ imposed thereunder. imprisonment guilty not proven that he was defendant contends: (1)
On appeal a erred giving the trial court doubt; that beyond (2) reasonable the defendant’s objection; on over instruction causation non-IPI in view of was excessive sentence nine-year three-to (3) record. find direct the defendant we the first contention raised Addressing witness, Rollie Sher- The first conflict in two witnesses. testimony Linson, deceased, man, hit that he the defendant testified saw John testified the concrete. Sherman to close his and fall to eyes him causing defendant, on after he fell. The legs that he the deceased move saw him hand, grabbed testified the deceased insulted him and other he turned around as he defendant stated that started to walk The away. the deceased fast his arms because he thought threw air up Ac- denied the deceased. hit him. The defendant hitting was going * * * backwards, the deceased “stumbled cording and hit his head.” legs, crossed his fell must ac defendant claims that his of the incident version argues the version offered Sherman. The defendant over cepted Sherman’s other evidence testimony presented impeached by hand, State, the trial. The on the other claims that defendant during find claim it to discuss either since our unnecessary impeached. of the record fails to disclose sufficient of either impeachment review *3 law, witness as a that his disregarded. matter of be require, testimony words, in the record nothing other makes either testimony witness or conflict inherently improbable Consequently, unbelievable. fact, in as the trier of to resolve. testimony was jury, Nance, 182, 652, 324 N.E.2d 20 655.
A issue collateral raised is that the State failed to doubt, a reasonable either defendant’s acts prove, were beyond per- formed or that Iris acts were to cause death.2 The de- recklessly1 likely 1 38, (Ill. par. 1971, 6), 4 —6 of the Rev. ch. Section Criminal Code Stat. 4 — provides: person recklessly, consciously A is reckless or acts when “Recklessness. he disregards unjustifiable a risk circumstances or substantial and exist offense; defining follow, a will statute result described and disregard gross constitutes a deviation from the standard of which such care person performed would act a reasonable exercise situation. An reck- performed meaning using lessly wantonly, is within the a statute the latter term, clearly requires meaning.” unless the statute another (Ill. 38, par. 1971, 3), pro 9 —3 of the Rev. ch. Section Criminal Code Stat. 9 — pertinent part: vides “Involuntary Manslaughter and Reckless Homicide. person justification (a) A who individual kills an without lawful commits manslaughter if his whether acts or unlawful which cause lawful likely great bodily as are or harm to such to cause death some indi- death are performs added.) vidual, recklessly." (Emphasis he them and fendant contends that even if the he the de- proved State “punched” ceased, death, this act act alone was not to cause was this likely nor performed agree. We do not recklessly.
An individual need not intend to inflict or death be injury guilty 202, involuntary manslaughter Higgins, (People N.E.2d it is if sufficient the acts such individual are 161); performed by to cause death or harm such acts are likely great bodily performed 1971, “Recklessness” is a recklessly (Ill. par. 3). ch. 9— mental state criminal of a that of intent involving liability degree below or To act falls short of knowledge. recklessly acting intentionally. Ford, (People Under the circum stances here present that the defendant’s justified finding i.e., of the deceased his fist striking with was an act performed recklessly, * * * awith “conscious disregard substantial and risk unjustifiable and Such deviation disregard gross from the standard of constitute^] care a reasonable would person the situation” [have] exercise[d] Rev. Stat. 6). 4— which Similarly, jury, instructed properly respect with to the found, elements of the offense of could have involuntary manslaughter, find, did that the defendant’s obviously deceased striking his fist with was an act to cause likely death or great harm. We bodily erroneous; cannot that this say conclusion is the evidence did not create a reasonable doubt. is
It within realm of common experience for an actor to realize
that the effect of a blow
a fist
with
is
likely far
than the
greater
effect of the initial
Indeed,
on the
impact
recipient.
the ob
frequently
in such
jective
confrontations is
knocking down
opponent. Conse
quently, where an individual sees fit to strike another individual with
and,
blow,
fists
as a direct consequence of
falls,
such
the recipient
head,
strikes his
and dies we see no justification for
reducing
degree
of criminal
from
liability
involuntary manslaughter to some lesser offense.
Towers,
Accord:
17 Ill.App.3d
223;
308 N.E.2d
People v.
Johnson,
100 Ill.App.2d
The defendant next contends that the trial court erred giving non-IPI instruction on causation over the defendant’s objection that it one erroneously prejudicially emphasized element of the crime over *4 others were equal which of or greater importance. in- challenged struction was worded following manner:
“In order for you to find the acts of the defendant caused the Linson, death of H. it is not necessary that you find the acts John the of defendant were the sole and immediate cause of death.”
543 District Appellate the Second by An identical instruction was approved 730, Brown a N.E.2d 1. In Brown, 293 v. 9 People Ill.App.3d Court severe by caused the death testified that the victim’s “was pathologist fac with other in combination he from the defendant beating received 730, 734, i.e., tors, Ill.App.3d (9 level and asphyxiation.” alcohol high that, 1, 293 4.) N.E.2d The court noted the that jury to inform designed obviously instruction was “(T)he the death consider and determine whether they required were to defendant, the acts of of Beach because of the ensued [the victim] and im- were the sole and that it that his acts not necessary 1, 736, 4-5. 730, 293 N.E.2d mediate 9 cause thereof.” Ill.App.3d deceased In testified that the die instant case the defendant of fell The analysis stumbled and as result of his inebriated condition. blood, the confirmed that report, deceased’s contained a pathological In view the deceased the death. had a level of alcohol at time high fact, could, of this evidence have determined the as the trier of deceased, did, fact, the the deceased defendant strike the but that had not verdict jury’s been intoxicated the fall would not have been fatal. The would then the “caused the death turn on their interpretation phrase of” contained in To involuntary manslaughter. the instruction defining avoid the tendered the instruc such dilemma from State above arising tion, the We which was trial to given jury. court approved by Reader, 26 find this v. instruction to state the law accurately (People 11, 298; Dillon, Ill.2d 186 N.E.2d People 225; defendant, People Brown), without, as claimed unduly by offense of man involuntary causation element of the emphasizing slaughter. the three- to sen
Finally, nine-year defendant contends that first argues tence the trial court should reduced. The State imposed by “failure to file a motion this issue has been waived for ch. While pursuant sentence reduction to 8—1(d).” § 1005— it the sentence modify statute the trial court’s enlarges cited power Cornett, 922; 329 N.E.2d has imposed (see Marshall, 566), we are unaware 331 N.E.2d such a failure file for State’s any authority proposition severity of the the sen a waiver of review any motion constitutes the cited statute interpret refuse tence imposed. expressly the State. manner suggested of defendant convicted instant case Felony. a Class
manslaughter, 9— years is and one-third a Class three penalty Felony The maximum *5 to ten 1973, ch. 1005 —8—1 years’ imprisonment. (Ill. Rev. Stat. see People Gonzales, Thus, (b)(4); the defendant’s minimum sentence of- three four months years only short of the maximum could been im minimum sentence which have posed trial in court. While we are able to find sufficient evidence presentencing in report arguments at presented hearing in aggravation mitigation to sentence excess of mini justify mum, the record is devoid of for the justification severity of any sentence imposed trial by the court. Consequently, pursuant power vested in this court Court Rule by Supreme 615(b)(4) 110A, reduce the defendant’s sentence par. 615(b)(4)), we to a term two to six years’ imprisonment.
Accordingly, of conviction judgment against entered on the charge of sentence is affirmed and involuntary manslaughter imposed thereunder is modified to a term of to six years’ imprison- two ment. The cause mittimus. is remanded for issuance corrected
Affirmed, modified, sentence cause remanded.
CARTER, J., concurs. EARNS, Mr. PRESIDING concurring part, dissenting JUSTICE part:
While I concur
in the decision
defendant’s
majority affirming
conviction,
I must
dissent from the reduction of defendant’s
respectfully
sentence from three to nine
two
years to
to six
Defendant’s actions
years.
resulted
death of another
I cannot overlook the serious
person.
ness of the offense even
defendant did
intend that the victim
though
not
addition,
die.
record
marked
showed a
propensity
violence and antisocial conduct.
It is the function of the trial court
the evidence
the'
weigh
seriousness of the
and defendant’s
offense
character and
court
history. This
should not disturb
sentence imposed
unless the trial
People
Taylor,
clearly
court
abused its
discretion.
Ill.2d