APPEAL from the Circuit Court of Vermilion County; the Hon.
JOHN F. SPIVEY, Judge, presiding.
MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
A jury found defendant guilty of the murder of one, Petty. Sentence to the penitentiary for a term of 30 to 70 years was imposed. Upon this record we conclude that it was error for the trial court to refuse defendant's tendered instruction defining voluntary manslaughter as in Ill. Rev. Stat. 1969, ch. 38, par. 9-2 (b), and to submit an appropriate verdict form to the jury.
It appears that defendant was a resident of the household of one Arilla Duckworth and contributed to the expense of maintaining it. The latter's daughter, Dorothy Thigpen, stayed at the home from time to time during the week. It appears that Petty had called at the residence where he had laid down with his shoes on the couch and gone to sleep. Dorothy Thigpen testified that at the time of the shooting she was in the living room with the decedent, and that defendant came in and told decedent to get up and go and insisted that he sit up. She testified that Petty stood up, three shots were fired and he was mortally wounded. Defendant then left the house but waited nearby and returned when the police arrived and surrendered the weapon. Sally Mullins testified for the prosecution that she was in the kitchen at the time of the shooting, that she heard defendant ask Petty to leave and Petty said he wasn't going, and then she heard three shots. She also testified that defendant was not under the influence of liquor.
Defendant testified that he twice shook Petty who jumped up; that Petty looked funny out of his eyes and that there was something wrong with him. He compared it with the look of one who used drugs. He testified that he knew decedent carried a knife and that he, the defendant, was afraid of Petty because the latter had broken a woman's leg with a piece of iron pipe. He testified that Petty started towards him saying, "I'll take that away from you and beat your brains out"; that he, the defendant, had backed up across the room and fired three times when he didn't have a chance to run. Defendant explained his carrying the gun by saying that he had been threatened by a gang or group of boys who carried knives.
Defendant testified that there had been no arguments with the decedent, and that he got the gun out when Petty said that he would beat defendant's brains out.
The record shows that the decedent was a man 30 years of age and described him as very muscular. Defendant's description of the size and weight of Petty seems to be somewhat exaggerated. Defendant himself was a man aged 56 years and of ordinary strength.
Upon these facts, the defendant tendered and the court gave an instruction on use of force in defense of the person in the language of IPI-Criminal, par. 24.06. The court refused, however, to give defendant's tendered Instruction No. 3 in the language of IPI-Criminal, par. 7.05:
"A person commits the crime of voluntary manslaughter who intentionally or knowingly kills another if, at the time of the killing, he believes that circumstances exist which would justify the killing, but his belief that such circumstances exist is unreasonable."
Such instruction would define for the jury the offense of voluntary manslaughter as in Ill. Rev. Stat. 1969, ch. 38, par. 9-2 (b). The court also refused to give defendant's tendered instruction in the language of IPI-Criminal, par. 7.06, stating the issues in the offense of voluntary manslaughter.
It is the accepted rule that if there is evidence in the record which, if believed by the jury, would reduce the offense to manslaughter, an instruction defining the offense should be given. (People v. Latimer, 35 Ill.2d 178, 220 N.E.2d 314 and People v. Harris, 8 Ill.2d 431, 134 N.E.2d 315.) In People v. Guthrie, 123 Ill. App.2d 407, 258 N.E.2d 802, this division held it to be reversible error to refuse to give defendant's instruction defining involuntary manslaughter upon the State's Attorney's objection that the offense was murder or nothing. There, as here, the testimony of defendant was the only evidence supporting the possibility of manslaughter. See also People v. Williams, 95 Ill. App.2d 421, 237 N.E.2d 740.
In giving defendant's instruction on the justifiable use of force, the trial court here determined, as a matter of law, that there was sufficient evidence on that issue for the consideration of the jury. When the trial court determined that the facts in evidence justify or require the giving of an instruction on the justifiable use of force, there are, in fact, three alternatives for the consideration of the jury, i.e., (1) murder, (2) that the use of force was justified and self defense was demonstrated, or (3) that while the defendant might have believed that the use of force was necessary under the evidence, such belief was unreasonable.
Here, the given and refused instructions required the jury to determine that there was either murder or justified self defense, and they were, in fact, barred from consideration of the statutory offense which results when force is used unreasonably as defined in Ill. Rev. Stat. 1969, ch. 38, par. 9-2 (b).
It was the rationate of Guthrie that it was for the jury to make a choice of the several offenses which ...