APPEAL from the Circuit Court of Cook County; the Hon.
ARCHIBALD CAREY, JR., Judge, presiding.
MR. PRESIDING JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:
The defendant, Allen Sulton, was indicted for the murder of Willie J. Riley. He was tried before a jury and found guilty of manslaughter. He was sentenced to serve not less than seven nor more than ten years in the Illinois State Penitentiary.
The defendant contends, on appeal, (1) that it was error to submit an instruction to the jury defining voluntary manslaughter because no evidence was introduced sufficient to support a verdict finding the defendant guilty of that crime, (2) that the verdict returned by the jury was defective and insufficient because it specified only that he was guilty of "manslaughter", (3) that the State knowingly permitted false testimony to remain uncorrected, (4) that he was unable to adequately prepare his defense because the State withheld its list of witnesses until the day of trial, (5) that he was represented by incompetent counsel, and (6) that he was not proven guilty beyond a reasonable doubt.
• 1, 2 We first consider the defendant's contention that no evidence was introduced at trial sufficient to support a verdict finding him guilty of voluntary manslaughter. Murder and manslaughter are kindred crimes. People v. Gajda, 87 Ill. App.2d 316, 232 N.E.2d 49; the unlawful killing of a human being is the major factor which characterizes both crimes. (United States v. Wiltberger, 5 Wheat. 76, 18 U.S. 76.) Section 9-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1965, ch. 38, par. 9-2) defines voluntary manslaughter and provides:
"9-2. § 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 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 his belief is unreasonable."
Where there is any evidence in the record which, if believed by the jury, would reduce a charge of murder to manslaughter, an instruction defining that crime should be given. People v. Harris, 8 Ill.2d 431, 134 N.E.2d 315; but where the evidence admits of but one of two conclusions, either that the defendant is guilty of murder or is innocent, the giving of an instruction and form verdict on manslaughter is improper. People v. Newman, 360 Ill. 226, 195 N.E. 645.
Initially we must point out that the instruction submitted to the jury dealing with voluntary manslaughter was tendered by the defendant. We have reviewed the entire record and conclude that there was sufficient evidence upon which the jury could find the defendant guilty of voluntary manslaughter.
• 3 The evidence reveals that the defendant had given the deceased, Willie Riley, a home in his apartment and that various items belonging to him had been burglarized. James O'Toole, a detective with the Chicago Police Department, testified that the defendant informed him that Willie Riley had committed the burglary and that the defendant had notified the police on two separate occasions of unsuccessful attempts to apprehend Riley. On one of those occasions, according to Stanford Jones, Riley admitted to the defendant that he was the perpetrator of the crime and that the stolen articles were at his brother's home. At approximately 9:45 P.M. on December 18, 1966, Willie Riley was shot and killed. The jury found the defendant guilty of the homicide. The jury could have found from these facts that the killing resulted from a sudden, violent, and irresistible passion which overcame the defendant upon apprehending Riley, the ungrateful guest and admitted burglar. Since there was some evidence which could sustain a verdict finding the defendant guilty of voluntary manslaughter, it was proper to submit an instruction on voluntary manslaughter to the jury.
In People v. Hunter, 365 Ill. 618, 7 N.E.2d 444, People v. Newman, 360 Ill. 226, 195 N.E. 645, and People v. McMurry, 64 Ill. App.2d 248, 212 N.E.2d 7 cited by the defendant, there was no evidence that the defendants were acting under intense passion caused by the provocation ...