delivered the opinion of the court:
Lоrenzo Canada was indicted for murder in the criminal court of Cook County. A jury found him guilty and fixed his sentence at imprisonment for life in the penitentiary. A writ of error has been issued to review the conviction.
The only substantial question is whether the trial court erred in refusing to instruct the jury on manslaughter. It is well established that where the evidence in a murder prosecution would permit the jury to find defendant guilty of liianslaugliter rather than murder, it is reversible error to refuse to give an instruction on manslaughter. People v. Papas,
Defendant Canada and William Cunningham, the dеceased, were living in the same apartment building on November 27, i960. Canada had an aрartment on the first floor and Cunningham had one on the second floor. The stairway from the first flоor to the second was described as consisting of about 10 steps to a landing, then 1 or 2 stеps to another landing and then about 10 more steps to the second floor. They werе engaged in a fight on the landing when the mortal wound was inflicted.
The defendant did not testify. The only witness who described the killing and the events preceding it was Irma Pickens. She was called by the Pеople and gave this account. About 1:15 A.M. Canada and Cunningham began arguing because Cunningham had complained of the noise from the first floor. Canada walked upstairs with a broken glass in his hand and asked Cunningham why he was trying to start trouble. Canada turned, ran down to his apartment, сame out with two knives in his back pocket, a bottle of liquid in one hand, a club in the other, аnd ran upstairs. Cunningham then ran to his room and returned with a hammer and hatchet, both in a raised position. The hammer hit a wall or table and broke. At this time the two were separated by sоme other men on the second floor.
Shortly after they had returned to their own apаrtments, Cunningham came downstairs and was about to leave the building when Canada came оut of his apartment and started to argue again. The landlord arrived at this time and separated the two. Cunningham then left, returned about 2 o’clock with a lady friend and went to his apаrtment. About 3 o’clock Cunningham again left the building to take his lady friend home. He returned about 3 :3o and Canada met him in the hallway on the first floor. He walked over to Cunningham with the club in one hаnd and one of the knives in the other, put the knife about an inch and a half from Cunningham’s chest and said, “I ought to run this right through you.” About this time Sam Thomas, a tenant from the third floor came downstairs, told Cunningham, “it’s not worth fighting over” and asked him to go upstairs. Thomas and Cunningham then went to Cunningham’s room.
Canada, still on the first floor, walked back and forth talking about Cunningham and saying “I’m just as much man as you are. Why would you call me a freak. You know I’m just * * *” (The witness did not complete this statement.) Cunningham had cоme out of his apartment and was standing at the head of the stairs on the second floоr when Canada again started up the stairs this time with the club in one hand and the knife in the other. Thе two met at the landing. Whether Cunningham was armed at this time was not brought out on either the direct оr cross-examination of Irma Perkins. Canada, who was a step or two below Cunningham, pushed him once and then a second time. Cunningham then swung at Canada and knocked him to a kneeling position. When Cunningham lifted his right leg to kick him, Canada brought the knife up wounding Cunningham in the thigh. Cunningham then took thе club, pushed Canada down the flight of stairs to the first floor, ran up to the second floor and fed at the door to his apartment.
Doctor Topia, a pathologist, testified thаt Cunningham died of a hemmorhage following a stab wound of the right thigh due to a laceration of the right femoral vein. He estimated the time of death to be between 5 and 30 minutes after thе wound was inflicted.
On the basis of this evidence the court instructed the jury on murder and self-defense and refused to instruct on manslaughter.
Whether or not the decedent was armed with a deаdly weapon when the mortal wound was inflicted could also have been an importаnt factor for the jury in arriving at its verdict. (People v. Pursley,
Under the facts of this case, we аre of the opinion that the court erred in refusing to instruct the jury on manslaughter. The judgment of thе criminal court of Cook County is reversed and the cause remanded for a new trial.
Reversed and remanded.