Appeal from the Circuit Court of Winnebago County; the Hon.
WILLIAM R. DUSHER, Judge, presiding. Reversed and remanded.
The defendant was convicted of murder and sentenced to a term of twenty years. She appealed to the Supreme Court, which transferred the cause to this court for decision.
The defendant had been residing for some time with one James Walker, for whom she worked as a harlot. May 19, 1961, was the defendant's birthday, and a party was held in honor of the occasion at the apartment in Rockford which she occupied with Walker. The defendant and Walker had been arguing before the guests arrived, and the argument became more heated as the evening wore on. They eventually repaired to the bedroom, where they began calling each other names which are best left to the imagination of the reader. According to the defendant, Walker then pinned her to the bed, held a knife to her throat, and threatened to kill her. Further conversation ensued, and the defendant finished undressing. It appears that defendant then referred to Walker in strong vulgar terms. According to the defendant's statement, hereinafter discussed, Walker then started toward a cabinet in the bedroom where defendant knew he kept a gun. The defendant also ran to the cabinet, arriving at the same time as Walker. They both reached for the gun, which was in a holster. Walker got the holster and defendant got the gun. She shot Walker several times, as a result of which he died.
It was the defendant's position at the trial that she shot Walker in self-defense. She contends that two of the instructions given by the court tended to prejudice this defense. Instruction No. 8 was as follows:
"The Court instructs the Jury as a matter of law that malice is not confined to ill-will toward an individual but is intended to denote an action, flowing from any wicked and corrupt motive a thing done with a wicked mind, when the act has been attended with such circumstances as evince plain indications of a heart regardless of social duty and fatally bent on mischief.
"Hence malice is implied from any deliberate or cruel act against another, however sudden, which shows an abandoned and malignant heart; and if the jury find from the evidence beyond a reasonable doubt that the defendant, Jo Anne Sowell, committed a deliberate and cruel assault upon the said James Walker, a/k/a Jimmy Walker, however sudden, which showed an abandoned and malignant heart on her part, then the jury would be warranted in finding that she committed such assualt and acts with malice within the meaning of the law."
Defendant argues that Instruction No. 8 allows the jury to find the defendant guilty if she deliberately shot the deceased, without reference to whether the act was necessary in self-defense. This same instruction was challenged on the same grounds in People v. Horton, 4 Ill.2d 176, 185-187, 122 N.E.2d 214 (1954), and the court held that so long as other instructions were given which adequately covered the law of self-defense, this instruction was not error. We have examined the other instructions in this case, and we find that they do adequately cover the question of self-defense. Therefore, on the authority of the Horton case, it was not error to give Instruction No. 8.
The defendant also complains of Instruction No. 9, which was as follows:
"The Court instructs the Jury, as a matter of law, that the words, `malice aforethought' do not necessarily imply the lapse of a considerable time between the malicious intent to take life and the actual execution of that intent; whether the design to effect death was formed on the instant or had been previously entertained is immaterial, for the malicious killing, if proven by the evidence beyond a reasonable doubt, in either case is murder under the laws of this State."
This instruction was also attacked in People v. Horton, supra, and, again, the court held that the instruction was not error, so long as other instructions adequately presented the theory of self-defense. Accordingly, we hold that it was not error to give this instruction.
Defendant complains of certain isolated remarks by the trial judge which allegedly prejudiced her in the eyes of the jury. We have studied these remarks in their context, and we do not find any impropriety on the part of the court.
Defendant also complains of the consumption of liquor by the jurors during their deliberations. She attempts to do this by including in her abstract copies of bar bills from the restaurant where the jurors had their meals. The bills are modest, and indicate, at most, the consumption of a small quantity of liquor. None of the circumstances of the matter are preserved in the record, since this issue was not raised at any time in the court below. Therefore, there is nothing for this court to decide.
The defendant contends that the evidence was insufficient to establish the crime of murder beyond a reasonable doubt. Her theory is that the uncontradicted evidence shows the shooting to have been an act of self-defense. While we have not reviewed all of the evidence in this opinion, suffice it to say that we think the matter of self-defense was properly a jury question in this case.
Having said all of this, we must still reverse and remand the case for a new trial. We believe that the court committed prejudicial error ...