Writ of error to the Circuit Court of Cook County, Criminal
Division; the Hon. GEORGE FIEDLER, Judge, presiding. Judgment
MR. JUSTICE LYONS DELIVERED THE OPINION OF THE COURT.
Rehearing denied June 28, 1965.
This is an appeal from a conviction by a jury finding defendant, Dennis Millet, guilty of voluntary manslaughter. He was sentenced to the Illinois State Penitentiary for a term of from 8 to 16 years. He prays that the judgment below be reversed, but that if said judgment is affirmed, that the sentence imposed be reduced.
Prior to April 1963, Katherine King was the girl friend of the deceased, John Ellison. In April she met defendant, Dennis Millet, and he replaced the deceased as her boy friend. He visited her home, a third floor apartment at 4515 South Woodlawn Avenue, nearly every evening. Sometime in June, deceased intruded upon Katherine King and defendant in her kitchen, and a verbal exchange resulted in an altercation between the two men. After Katherine King pulled deceased away, defendant departed. Deceased followed, however, allegedly wielding a butcher knife.
Around 5:00 p.m. on August 6, 1963, deceased parked his auto across the street from 4515 South Woodlawn Avenue, joined Katherine King on her front porch, and delivered a purse to her as a gift. Noticing that deceased appeared to be intoxicated, Katherine King obtained his auto keys and offered to drive him some place then withdrew her offer and entered the first floor apartment of Cora Rae, a friend, leaving the deceased on the porch. About 6:00 p.m. defendant arrived with three male companions: Lamont Gerling, John Payne and Jacob Martin. The group was met on the porch and led inside by Katherine King. She could not recall any incident with deceased. Defendant testified, however, that deceased seated on a porch step, called, "hello, Mr. Dennis," and followed the group to the first floor apartment. Cora Rae, the occupant, said "you can't come in," and slammed the door. Subsequently, one Ethel Hollinghead arrived and saw deceased on a porch step. He grabbed her arm but she pulled loose and joined the others in the first floor apartment, where Katherine King admonished her, "don't let John in because he has been trying to get in before." Around 6:30 p.m. deceased knocked on the door, requested to use the lavatory, and after Katherine King slammed the door on his foot, urinated in the hallway. He then hollered through the outside window before resuming his porch seat.
Later deceased began to cross the street toward his auto. Shortly thereafter defendant, his three companions and Katherine King walked outside. Defendant testified that he "turned to my right to go north on Woodlawn toward my automobile." Deceased called, ". . . wait a minute . . . I want to see you," and walked toward defendant who replied, "don't come upon me John because I don't want any more trouble with you." But deceased called, "It's no big thing to come up on you," and quickly returned toward his auto. Defendant walked into the street and, as deceased lifted the trunk cover, warned, "don't do it John, don't come out of there with anything." Deceased replied, "I'm going to take your head off I'm going to kill you." Defendant then said, "don't do it John" and removed his revolver from his left front pocket and fired three times. Two bullets struck the deceased, one entering the side of the left arm and the other entering the rear of the left shoulder.
A few minutes later, attracted by a gathering crowd, Police Officer Rodney Dawson and his partner arrived and observed defendant about four feet from the auto trunk, clutching his revolver. The trunk contained: tools and a tool box, a spare tire, rags, a jack and a tire wrench. Defendant admitted the shooting and gave his reason as "an argument." About 8:00 p.m., in a police station, defendant admitted following deceased across Woodlawn and firing three times after "Ellison (the deceased) opened up the trunk of his car and reached in as if trying to get a jack. . . ."
Defendant requested a jury trial on consolidated charges of murder and voluntary manslaughter. The State presented the testimony of the widow, Mrs. Grace Ellison, Katherine King, Ethel Hollinghead and Officers Dawson and Barksdale. The defense countered with Katherine King, John Payne, defendant and one, Joe W. Tompson, a second floor resident of 4510 Woodlawn Avenue, who witnessed the shooting from the front window of his second floor apartment, directly over the auto of the deceased.
Defendant was charged with the crimes of murder and voluntary manslaughter. The statutory crime of murder is found in Ill. Rev Stats (1963), chapter 38, paragraph 9-1. The statutory crime of voluntary manslaughter is found in Ill. Rev Stats (1963), chapter 38, paragraph 9-2. This provision states:
(a) A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:
(1) The individual killed, or
(2) Another whom the offender endeavors to kill, but he negligently or accidentally causes the death of the individual killed.
Serious provocation is conduct sufficient to excite an intense passion in a reasonable person.
(b) A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but this belief is unreasonable.
Count 1 of the indictment charged defendant with murder. Count II of the indictment charged defendant with the type of voluntary manslaughter found in section 9(2)(a) of the Criminal Code. Defendant was convicted of voluntary manslaughter as charged in the indictment and brought this writ of error.
Defendant's theory of the case is that the trial court erred in a number of instances. We will review each of these ...