*1 Plaintiff-Appellee, Robert State Johnson, Defendant-Appellant. 11415;
Fourth District October 1971. Litak, Danville, Edward of Defender Project, appellant. Danville, Everett Laury, State’s for the Attorney, People.
Mr. TRAPP delivered the of the court: opinion JUSTICE one, A found defendant Sentence Petty. of the murder guilty term 30 to penitentiary imposed. Upon 70 years record we defend- conclude that was error for the trial court refuse ant’s tendered Ill. Rev. defining voluntary manslaughter Stat. 9—2 verdict and to submit an (b), appropriate form to the jmy.
It appears defendant was a resident of the household Arilla Duckworth maintaining and it. The contributed expense latter’s time to daughter, Dorothy at home from Thigpen, stayed time during had at the residence appears week. called Petty where he had laid down with his shoes and gone sleep. couch Dorothy Thigpen testified that at the was in shooting she living decedent, and and that defendant came in told decedent get go and insisted he sit She testified that up. Petty stood up, three shots wounded. mortally then left the house nearby waited returned when the police arrived and surrendered the weapon. Sally testified Mullins shoot- time of kitchen that she was in the prosecution said Petty to leave heard defendant ask
ing, that she She also and then she heard three shots. wasn’t going, not under the influence of liquor. up; jumped testified that he twice shook wrong something there was eyes of his funny looked *2 He drugs. used the look of who with him. He compared he, the defend- and that decedent carried knife knew leg woman’s ant, latter had broken was afraid of because the him towards started with a of iron He testified that piece pipe. he, out”; that brains “I’ll take from and beat saying, away you your three times defendant, had backed across carrying his when he didn’t have a to run. Defendant explained chance group or gang he had been threatened gun by saying boys carried knives. de- with the arguments testified that there had been no
cedent, he would beat and that he said that out when got gun defendant’s brains out.
The years age record shows that the a man 30 decedent was described the size him as very muscular. Defendant’s description himself weight Petty seems be somewhat exaggerated. was years a man 56 aged and of ordinary strength. gave the court these tendered and
Upon language in the instruction on use of force in defense of the person refused, however, defendant’s give 24.06. The court par. No. 3 7.05: par. tendered Instruction in the language who in- person “A commits the crime of if, killing, of the tentionally or kills another knowingly believes killing, that circumstances exist justify which would his belief that such circumstances exist is unreasonable.” man Such instruction would define the offense of jury 1969, 38, as in Ill. The court Rev. Stat. ch. 9 — 2 (b). par. refused to defendant’s of IPI- give language tendered instruction in the Criminal, 7.06, par. man stating issues the offense slaughter. rale that if there is in the record accepted evidence
which, if believed the offense to jury, reduce Latimer, given. (People v. the offense defining should be Harris, v. 178, 431, 35 220 134 People Ill.2d N.E.2d 314 8 Ill.2d Guthrie, 802, N.E.2d In 123 N.E.2d 315.) 258 Ill.App.2d held give division it to be reversible error defendant’s to refuse to instruction defining Attorney’s the State’s involuntary upon There, here, the objection nothing. that the offense murder or was the possibility only supporting evidence 421, 237 Williams, Ill.App.2d See also People v. N.E.2d 740. force, defendant’s instruction on the law,
trial determined, court here was sufficient as matter of When evidence that issue for the of the jury. consideration court determined the giving that the facts in evidence or justify fact, are, of an instruction three use of i.e., alternatives for the jury, (2) consideration (1) demonstrated, the use of force was and self defense was justified (3) that while the of force have believed that necessary under the was unreasonable. belief
Here, the given and refused required determine were, there was either self justified fact, barred from results statutory offense which when force is used unreasonably as defined in Ill. Rev. Stat. 9 — 2 (b).
It was rationate of that it a choice make of the several which offenses the evidence disclose. judgment below reversed and the cause is remanded for new
trial.
Reversed and remanded.
CRAVEN, J„ concurs. SMITH, dissenting: Mr. Presiding JUSTICE Guthrie, in stands for my opinion, very the reasonable proposition is a that if there sufficient evidence to verdict either of support manslaughter the should instructed as to do not be both. I a the statement that the of alone question standing defendant evidence”, be “sufficient but I think it is may incorrect cite authority, case, as I because read there was other supporting evidence.
Be that as it a may, believe that are facts finding there sufficient to the of an use instruction giving facto, the ipso requires of an instruction on man- giving me, so-called third To idea or alternative. the concept —the self-defense not axiomatically include idea of volun- concept tary manslaughter. exclusive, This is not are they mutually say only that facts which one support the other. The support would majority IPI-Criminal, have us every believe that in case where seq. 7.03 et ¶24.06, given is (volun then (self-defense) ¶ toas words, determination tary must manslaughter) In other given. be different one question conceptually of two law mandates the giving is, involved, that instructions. of law I think there are two questions there, and are are there one sufficient facts to support (self-defense) again, sufficient other ? support (manslaughter) course,
Of issue. But same facts could concepts both put answered, are as I still two But questions of law that must be not one. said, have I factual presented think it could be is true that we context an which would rule instruction support on self-defense and vice versa.
Here, tendered refused properly I believe the instructions the issue raise the reason that was not sufficient evidence And, said, that a determination as I I do not believe manslaughter. mandates an instruction on self-defense propriety giving this, think, am I I of the tendered instructions giving IPI-Criminal, 7.05, Voluntary buttressed Comment to Committee Manslaughter: is the defense is charge
“When verdict, manslaughter proof supports # be: should order instructions direction that a instruc- To me this is implied Indeed, doesn’t it. be if the support should not proof tion says sec. 24.06 (self-defense) Comment Committee’s instruction, manslaughter to the effect that nothing right, surely be If the is then given. majority instruction must also as one much order prime purposes comment here be very another if such is to relate one instruction with pattern is instructive. in fact the To me such silence case. did in fact tender instruc- manslaughter assume, because I so, done would not reverse. majority had not if defendant tions, that so, that a statement determination of not say do they But force “three presents propriety “that while being jury”, alternatives for necessary have believed of force was unreasonable”, belief was leaves one wonder- that the issue of mean to raised say do ing. *4 of whether regardless requested instruction is courts Let us assume that there is position. left in untenable the future are a tendered instruction the defense on to justify sufficient evidence no tender of an but murder conviction is given. none and therefore court error it was result, appeal it be argued can Seemingly, issue? on this on its own believe such is now possible, holding, majority’s that this should be so. reasons, I
For these dissent. v. Robert Plaintiff-Appellant, of the State
Coagan, Defendant-Appellee. 70-292; 1, 1971. Second District October