APPEAL from the Circuit Court of Cook County; the Hon. FRANK
R. LEONARD, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 21, 1966.
A jury in the criminal court of Cook County found the defendant, Betty Jean Davis, guilty of the murder of Leroy Hill, and she was sentenced to the women's reformatory for a term of not less than fifteen nor more than twenty-five years. She has appealed contending: (1) that the statute under which she was charged is so vague and uncertain as to offend constitutional requirements of due process; (2) that an instruction to the jury, in the language of the statute confused the offenses of murder and manslaughter; (3) that under the evidence the jury should have found either that the killing was in self-defense or that it was manslaughter; and (4) that certain errors deprived her of a fair and impartial trial.
The defendant and Leroy Hill had at one time cohabited as man and wife, and Hill was the father of the defendant's youngest child. At about 10:45 on the night of March 23, 1962, police officers summoned to defendant's apartment found Hill lying on the kitchen floor. He had a bullet wound in his neck, which caused his death. The defendant and her uncle, Frank McDowell, were the only persons present. The defendant told the officers that Hill was her ex-boy friend, and that when she refused to admit him to the apartment he had broken a window pane, reached in and unlatched the door and entered in a "threatening manner." She ran to the pantry, got a gun, and shot him after he had paid no heed to her warning to get out. Subsequent investigation disclosed that Jesse Fason and his wife, Ethel Fason, had been present at the time of the shooting. When confronted with their statements of what had occurred, the defendant admitted that after the shooting the window pane had been broken and the deceased's coat had been placed upon his body to give the appearance of a forced entry. She testified at the trial, however, that these things had been done by McDowell or Fason because Ethel Fason stated that she did not want to become involved in a killing.
It is not disputed that defendant, McDowell, the Fasons and Leroy Hill were present in the apartment on the evening in question. Food was prepared and after they had eaten, some of those present began to drink. There was no showing that anyone was intoxicated. All but Jesse Fason began to play cards.
Ethel Fason testified that shortly after the card game started, she and the defendant went to the bathroom and the defendant there told her that a week earlier Hill had accused her of sleeping with her uncle, and that if decedent "started anything tonight" the uncle was going to kill him. Ethel Fason also testified that the defendant showed the witness two guns in a pasteboard box on the pantry shelf and stated: "Now, don't you think we are ready if he starts something?" The defendant admitted showing the guns to the witness, and that they had been in the bathroom together, but she denied the statements attributed to her. She testified rather that she had shown the guns to Ethel Fason before the men arrived in the apartment, and that her only statement in the bathroom had been to the effect that the bickering in the card game was making her nervous.
The card game continued after the women returned to the table and the shooting occurred shortly thereafter. According to Fason and his wife, the defendant stated that she had no money and asked Hill for $2. When he refused, the defendant went to the pantry and returned with a gun which she brandished angrily while continuing her demands for $2. At this point Ethel Fason ran out of the apartment and, as she did so, she heard her husband asking defendant to put up the gun, and then the sound of two shots. Jesse Fason testified that decedent just sat still with his hands on the table and said nothing when confronted with the gun. Fason also testified that he pleaded with the defendant to put down the gun, and that she would not do so. He asked her if he could leave and was told that he could. He stated that before he could reach the door defendant fired two shots, after which Hill fell to the floor, knocking over the table as he fell. As he was going out the door, Fason heard the decedent say: "Well, looks like you did get me," to which the defendant profanely replied that all she had wanted was her $2.
The constitutional argument advanced by the defendant is somewhat difficult to follow. As we understand it, however, it centers upon the definitions of the crimes of murder and voluntary and involuntary manslaughter as they appear in the Criminal Code. The relevant portions of these definitions are:
"§ 9-1. Murder.] (a) A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:
(1) He either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; or
(2) He knows that such acts create a strong probability of death or great bodily harm to that individual or another; * * *.
"§ 9-2. Voluntary Manslaughter.] (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 ...