APPEAL from the Circuit Court of Cook County; the Hon. THOMAS
R. McMILLEN, Judge, presiding.
MR. PRESIDING JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT:
Willie D. Barksdale, defendant, was indicted and tried on a charge of murder. At his trial the jury found him guilty of involuntary manslaughter, and he was sentenced to not less than four nor more than eight years in the penitentiary.
The defendant admits that he shot and killed Walter Williams on October 3, 1966; however, he maintains that there was insufficient evidence to sustain the charge of involuntary manslaughter.
On the evening of October 2, 1966, four young men, including the deceased and Joseph Watkins [whose birthday was being celebrated], visited a number of bars and had a few beers. Later, around midnight, they decided to contribute fifty cents each and buy gasoline for the car. At the gas station the driver, Zelner Jones, ordered $2.00 worth of gas. Walter Williams, the deceased, needed change so that he could contribute his fifty cents, and he held a dollar bill out the window, asking the attendant [defendant] for change, but his request was ignored. When the attendant collected the $2.00, Williams again asked for change and again was ignored. When the attendant returned with green stamps Williams asked him about the change and the attendant said, "What the hell about the change * * *."
Augustus Townes, one of the group, testified that after he heard the attendant make the previous remark, he heard a shot and saw Williams slump down with blood running from his head. According to Zelner Jones' testimony, after Williams' requests for change the defendant said, "Smart alec * * * I don't have to give you no change." The defendant then stepped back, pulled out a pistol and shot Williams from a distance of about two feet.
Joseph Watkins testified that when the defendant told Williams he had no change, Williams said "I don't see why not. You run a service station." The defendant then moved back, fired into the car and killed Williams. He waved the gun at them and said, "You all better get out of here before I shoot all of you." Jones began slowly driving from the station, and at the sidewalk they noticed a police car; the officers got out and motioned Jones to the curb, where a search of the boys and the car disclosed no weapons of any kind.
Officer Walter Legrow testified that he heard the gunshot from the gas station; that when he questioned the defendant he was told that the deceased "tried to slick me on the change so I shot him. You can't take any chances." Officer John Waters heard and verified that statement. On cross-examination Officer Legrow denied that the defendant had told him the boys had tried to stick him up.
The defendant testified that he had lived in Chicago for thirty years and had been a gas station attendant on and off for seventeen years. On the morning in question the car with the four boys came into the station at about 12:45; the driver asked for $2.00 worth of gas, and the defendant had to wait about 15 minutes before he was paid. Williams kept asking for change but offered no money to be changed, and when the defendant wiped the windshield Williams said he would stick him up. The defendant said, "Somebody in back says I will stick you up and was fumbling on the floor, kind of excite me * * *. When I came up I shot but I don't even know that I hit anybody * * *." He said he had been the victim of a holdup previously at 7400 South Cottage Grove. He told the boys to get out of the station, and when the officer came to him and asked for the gun he gave it to him, saying that a robbery had been attempted.
The defendant argues that the record does not justify the conclusion that he was proved guilty beyond a reasonable doubt. He argues first that the testimony discloses his alertness to a robbery due to the suspicious behavior of the boys; that they were dressed in leather coats and wore dark glasses; that they kept him waiting ten to fifteen minutes for payment of the gas. He also argues that the different versions given by the boys regarding the amount of drinking they had done would lead to the suspicion that they may have started out to celebrate a birthday and got drunk enough to try a stickup.
• 1 By such argument the defendant would have this court conclude that he was alerted to a robbery; that, although he does not say so, he intimates that since the boys looked suspicious his belief and act were reasonable; and he argues that on that analysis he should have been acquitted. The difficulty with that argument is that it presents questions which properly belong to the trier of fact at the trial. However, the jury found the facts to be different, and in order to follow defendant's argument we would have to rule that the jury's verdict was palpably erroneous. (People v. Boyd, 105 Ill. App.2d 345, 349.) On the record before us we cannot make such a ruling.
The defendant argues that the jury had the choice of finding him guilty of murder or acquitting him. He maintains that if the State's evidence were believed the jury should have found him guilty of murder. or acquitting him. He maintains that if the State's evidence were believed the jury should have found him guilty of murder. He then argues that the jury attempted to strike a compromise by finding him guilty of involuntary manslaughter, but that the evidence does not justify such a finding. He cites People v. McMurry, 64 Ill. App.2d 248, in which case this court found it was error to have given an instruction on voluntary manslaughter when there was no evidence introduced tending to show that the defendant was acting under intense provocation. We think that case is distinguishable from the one before us where there was sufficient evidence to justify a finding of involuntary manslaughter because the jury was entitled to believe that the defendant had acted recklessly and in such a manner that his act was likely to cause death or great bodily harm.
Ill. Rev. Stat. 1965, ch. 38, par. 9-3, defines involuntary manslaughter and reckless homicide as follows:
(a) "A person who kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily ...