APPEAL from the Circuit Court of Cook County; the Hon. MEL R.
JIGANTI, Judge, presiding.
MR. PRESIDING JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:
Defendant was charged with murder. After a jury trial he was convicted of voluntary manslaughter and sentenced to a term of 4 to 10 years. On appeal he contends that his conviction for voluntary manslaughter was improper; that the court erred in refusing to give a certain instruction tendered by defendant; and that the court erred in permitting a child to testify as State witness without a determination of her competency. The pertinent facts are as follows.
On the evening of decedent's death, she and defendant attended a party together. Jewel Leon testified for the State that she was present when they arrived at the party. Defendant and deceased were quarreling when they arrived and throughout the evening. Defendant fell asleep and when he awoke asked the deceased where she had gone. Her reply that she had not gone anywhere angered defendant. They resumed the quarrel, and defendant left the party. Decedent followed him. Miss Leon, who had been offered a ride home by the defendant and deceased earlier in the evening, followed them to the street. When she arrived on the street, she noticed defendant in his car alone trying to drive away. Decedent was beating on the car windows. Decedent then bent the radio antenna on defendant's car. Defendant stopped, emerged from the car and ordered deceased to fix the antenna. When she had straightened the antenna, defendant stated that she had not fixed it properly and that he was going to kill her. Miss Leon noticed something in defendant's hand. She heard the report of a gun and saw the deceased fall. Defendant returned to the car and drove away. He drove to a gas station, called the police and waited for their arrival.
Defendant testified in his own behalf that he brought deceased to the party in question. Upon leaving, he entered his car and began to pull away. A group of teenagers approached, shouting "Blackstone Rangers." Fearing trouble from them, he took his gun out of the car. As he walked around the car to open the door for the two women, someone pushed him. The gun discharged, a bullet striking the deceased. The deceased was his girl friend. He denied ever threatening her, and denied that they quarreled on the evening of the shooting.
Deceased's ten-year-old daughter testified in rebuttal for the State that defendant twice had threatened to kill her mother, once on the previous Easter Sunday. Two witnesses testified in rebuttal for the defense that they were present at the Easter Sunday gathering, and that defendant had not threatened to kill the deceased.
The State tendered instructions defining the elements of the crimes of murder, voluntary manslaughter and involuntary manslaughter. Before giving the instructions, the trial judge asked defense counsel if he had objections to any of the instructions. When counsel stated that he had no objections, the judge stated that then he would give verdicts covering all three crimes: murder, voluntary and involuntary manslaughter. During closing argument, the prosecutor stated that the State had proved defendant guilty of murder, but if the jury believed that the acts which preceded the firing of the shot were sufficient to inflame the passions of a reasonable man, then they should find defendant guilty of voluntary manslaughter. Defense counsel interrupted the prosecutor, but made no objection to the statement.
Defendant first argues that there was insufficient evidence to find that he had the requisite mental state to be found guilty of voluntary manslaughter. Voluntary manslaughter is defined in Illinois as follows:
"(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) * * * Serious provocation is conduct sufficient to excite an intense passion in a reasonable person." Ill. Rev. Stat. 1969, ch. 38, par. 9-2(a).
Defendant maintains that the conduct of the decedent prior to the instant killing could not possibly excite such an intense passion in a reasonable man that would cause him to kill. He thus urges that the testimony of Jewel Leon would support a murder conviction, but not one for voluntary manslaughter.
• 1 Serious provocation is an essential element of voluntary manslaughter; and words and gestures are not sufficient provocation to excite a reasonable man. (People v. Marrow, 403 Ill. 69, 85 N.E.2d 34.) However, in People v. Harris, 8 Ill.2d 431, 134 N.E.2d 315, the court stated at p. 434, 436:
"We have long held that if 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. [Citations omitted]
* * * The jury and the trial judge observed the witnesses, heard them testify, and were in a much better position to determine their credibility than a court of review. This court will reverse because of insufficient evidence only where that evidence is so palpably contrary to the verdict, or is so unreasonable, improbable or ...