Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. NATHAN M. COHEN, Judge, presiding. Affirmed.
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
In a bench trial on a murder indictment, Jesse Pena, 17 years of age, was found guilty of voluntary manslaughter under section 9-2(b) of the Criminal Code (Ill Rev Stats 1965, c 38). He was sentenced to the penitentiary for a term of 5 to 15 years. On appeal, defendant contends that his conviction should be reversed because he acted in self-defense.
In summary, the record shows that two groups of boys were in a street altercation, and defendant shot and killed Dragan Petrovich, one of the group known as "Junior Spartans," and wounded another, Jesse Perez. It was stipulated that the cause of death of the deceased was a gunshot wound, and that no alcohol was found in the blood of the deceased.
Criminal Code provisions in point are:
"§ 9-2. Voluntary Manslaughter.] . . .
"(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 his belief is unreasonable."
and Article 7 Justifiable Use of Force; Exoneration, which provides:
"§ 7-1. Use of Force in Defense of Person.] A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other's imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony."
The evidence for the State included two eyewitnesses and a police officer.
The first witness for the State, Jesse Perez, 19 years of age, testified that on the evening of November 28, 1964, the "Junior Spartans," Dragan Petrovich, Jesse Perez, Angelo Flores, Salvadore Tinoco and a boy called "Cotton Head," had spent some time driving around in Petrovich's 1959 white Chevrolet. At about 11:45, they parked the car on 18th Street near Newberry Street. They got out and walked across the street toward a nearby restaurant. As they reached the other side of the street, they saw a group of boys, which included the defendant, Jesse Pena, Steven Tienda (Buzzy), Raymond Juarez, Robert Paloma and James Daniels. "Cotton Head" said something to "Buzzy," and Perez heard someone say, "Jesse, forget it." Perez then saw some boys running.
Perez further testified that he was standing quite close to defendant when he heard a shot. He felt blood on his neck and fell to the ground. "I kneel down and he took another shot at me. That's when I saw the gun on him [Jesse Pena], . . . three feet away from me. . . . I just tried to get up and run. I couldn't run. He took another shot. He shot at me twice. After I got hit the first time he shot at me twice. . . . All I remember is somebody picked me up and took me in a squad car."
On cross-examination, Perez testified that he and the defendant were not exactly friendly but they had never had an argument. They had delivered papers together two or three years before. Perez dropped out of school when he was in the 8th grade.
The second witness for the State, Salvadore Tinoco, 17 years of age, knew the defendant, Jesse Pena, and the deceased, Dragan Petrovich. He had been in the car with Petrovich, Perez, Flores and "Cotton Head," and when they walked across the street, "Cotton said, `I want to talk. I want to say something to Buzzy,' Steven Tienda. . . . So I turned around and I said, `Forget it.' . . . Well, I heard a shot. I turned around. Jesse was going down, Jesse Perez. So I went towards Jesse. Pena, he shot again at Jesse. So then he turned around towards me and Dragan and pointed towards me. I dived. He took a shot. I don't know where he hit Dragan. So then he took another shot. I heard the other shot. Then he came towards me. I was on the ground. He shot. But I jumped up. He missed me. . . . Jesse Pena faced towards Dragan and shot again. Dragan was in the middle of the street, running into . . . the alley. He shot at Dragan. Then I picked up Jesse. I was running. I seen Dragan when he got hit again. I don't know if he hit him then. . . . Jesse Pena re-loaded and started shooting again." Tinoco heard the gun fired about twelve times. Before the gun was fired, he had no argument with Jesse Pena or anyone.
On cross-examination, he testified he had quit high school while in his first year and was working at the time of the occurrence. He did not hear defendant say anything, nor Steven Tienda. "I didn't hear him say anything, . . . I didn't hear Cotton say anything," and when the witness said, ...