Appeal from the Circuit Court of Winnebago County, Seventeenth
Judicial Circuit; the Hon. JOHN S. GHENT, JR., Judge, presiding.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.
A jury found the defendant, LeRoy Knox, guilty of the offense of voluntary manslaughter in connection with the death of Claude Spearman. The court entered a judgment of conviction on the verdict, denied the defendant's petition for release on probation and sentenced him to a term of not less than three nor more than ten years in the penitentiary.
The defendant appealed, urging that the jury was not properly instructed by the trial court; that the State failed to prove the defendant guilty of the charge against him beyond a reasonable doubt; and that, in the alternative, the court erred in denying the defendant's petition for release on probation, or in imposing a sentence of three to ten years.
The death of Claude Spearman resulted from multiple gunshot wounds which took place on March 2, 1968. Spearman came to the defendant's residence that evening looking for JoAnn Hunter, his estranged girl friend, who at the time was hiding in defendant's bedroom. Spearman had been drinking and was armed with the gun which caused his death. He also carried additional rounds of live ammunition. He had come to the defendant's house on prior occasions looking for JoAnn, and at the time in question, he accused the defendant of knowing where she was.
The defendant attempted to get Spearman to leave and put away his gun. Spearman agreed to leave the house if the defendant would go to a nearby bar with him. The defendant, who was not fully dressed, went to his bedroom to get his shoes. Spearman followed him into the bedroom and saw JoAnn's clothes laying on a laundry hamper. He then drew his gun and threatened to kill the defendant, and did fire a shot which missed him.
Spearman then said he would give the defendant to the count of three to tell him where JoAnn was, or he would kill him. At the count of two, JoAnn, who was under the bed, jumped from her hiding place and yelled, "Here I am, Claude Lee." Spearman then began to curse and yell, and told the defendant to turn on the light. The latter said there was none, but Spearman, nevertheless, renewed his request. The defendant then moved toward Spearman, lunged at him, and knocked the gun out of his hand and onto the floor. As JoAnn fled from the room and the house, both men were trying to get the gun.
At this point a witness, Pearl Hawks, came to the door of the defendant's house. She had heard the struggle and fighting from the outside. She testified that she saw the defendant and Spearman standing close together facing each other in the hallway; that they had been scuffling; that the defendant had the gun in his right hand and was yelling, "I'll kill you"; that three or four shots were fired, both men fell to the floor, and another shot was fired. Pearl Hawks also testified that the defendant's hand came up with the gun; that he hit Spearman; and that he then stood up and kicked him.
Dr. Keith M. Truemner, who performed the autopsy, testified as to the position of the wounds on the body. The State contends that such evidence tended to show the number of shots fired and the relative position of the deceased and the defendant when the shots were fired; and that such facts were important to the issue of whether or not the defendant was acting in self-defense when he shot the deceased.
The defendant contends that the instruction on circumstantial evidence was improper. The instruction read:
"The court instructs the jury that circumstantial evidence in criminal cases is the proof of such facts and circumstances connected with or surrounding the commission of the crime charged as tend to show the guilt or innocence of the party charged, and if the facts and circumstances shown by the evidence in this case are sufficient to satisfy the jury of the guilt of the defendant beyond a reasonable doubt, then such evidence is sufficient to authorize the jury in finding such defendant guilty. The law authorizes a conviction whenever there is sufficient legal evidence to show the defendant's guilt beyond a reasonable doubt, and circumstantial evidence is legal evidence."
The testimony of the doctor clearly was admissible. The People v. Ciucci, 8 Ill.2d 619, 625, 626, 137 N.E.2d 40 (1956); The People v. Kreutzer, 354 Ill. 430, 437, 188 N.E. 422 (1933); 14A ILP, Criminal Law, § 346. Also, we think it was proper to give an instruction on circumstantial evidence, based upon the testimony of the doctor. The defendant contends that even if an instruction on circumstantial evidence should have been given, the instruction is an incorrect or confusing statement of the law. The defendant suggests that Illinois Pattern Jury Instructions, Criminal No. 3.02, is a correct statement of the law and indicates it is the type of instruction which should have been given. It states:
"Circumstantial evidence is the proof of facts or circumstances which give rise to a reasonable inference of other facts which tend to show the guilt or innocence of (the) (a) defendant. Circumstantial evidence should be considered by you together with all the other evidence in the case in arriving at your verdict."
We agree that the IPI instruction is much to be preferred. However, the IPI instructions were not available when this case was tried. While we do not approve of the form of instruction as given, we conclude that it was not so misleading as to warrant a reversal. Likewise, neither do we believe that it caused a different verdict than otherwise would have been rendered by the jury, nor that any defects in the instruction constituted ...