APPEAL from the Circuit Court of Cook County; the Hon. L.
SHELDON BROWN, Judge, presiding.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:
The defendants, Chris Joyner and J.T. Thomas, were indicted for the murders of Anthony Seyl and James C. Starr. They were tried in the circuit court of Cook County and the jury found them guilty of the murder of Starr and not guilty as to Seyl. They were sentenced to the State Penitentiary for a term of not less than 30 nor more than 60 years.
At about 4:00 A.M., on August 22, 1968, the defendants and three other persons were leaving a drive-in restaurant in a car driven by Joyner. At that time, another car, driven by Starr, in which Seyl was a passenger, was entering the parking lot in the same traffic lane as the Joyner car. The defendants, and the others in their car, were black; Seyl and Starr were white.
There is some dispute as to what transpired. The defendants, and the defense witnesses, testified that Seyl yelled at them in a profane way, to move their car; that Joyner could not back up because another car was behind him; that Seyl then got out of his car, continued his profane language, added racial comments, approached Joyner and stated that "niggers" had no business being there.
As Joyner started to get out of the car, he saw that Seyl was taller and heavier than he, so he kept one foot in the car and they argued. Starr, who was shorter than Seyl, but weighed about 250 pounds, then got out of his car and approached Joyner while using profanity and making similar racial statements, and according to defense witnesses, struck Joyner in the face with a gun. Joyner then pulled a gun out of his belt and shot it in the air. Seyl grabbed him and the two started tussling. Starr also joined in the fracas and, at about this time, Thomas got out of the Joyner car and grabbed Starr's arm. Thomas and Starr then started fighting.
Joyner testified that shortly after he shot into the air, Seyl grabbed his right hand, which held the gun; that while they were fighting, he was thrown to the ground and Seyl was on top of him; that Seyl was holding onto the gun trying to point it toward him (Joyner); and that he was holding the gun tight and it went off twice and Seyl went limp. Joyner further testified that he did not pull the trigger.
Seyl was shot three times, the fatal wound being in the back of his head on the right side. Another bullet inflicted a superficial wound above the right ear, went through the scalp and was not recovered. The third bullet entered the right shoulder.
Thomas and Starr were struggling at the same time. Starr was on top of Thomas, and according to defense witnesses, Starr had the gun in his right hand, and Thomas was holding Starr's right hand with both hands in an effort to keep the gun from being pointed at him. Meanwhile, Starr was hitting Thomas with his left hand.
After Seyl was shot, Joyner ran to the aid of Thomas. He told Starr to get off Thomas and then took hold of Starr and tried to dislodge him. Joyner stated that he grabbed Starr around the shoulder and head with both hands, and was pulling to get him off of Thomas when the gun went off. Starr was shot in the back of the head.
Most of the prosecution witnesses heard six or seven shots. One, a friend or acquaintance of the defendants, testified that he was driving right behind Joyner as they were leaving the restaurant. He heard Seyl and Starr cursing, but apparently heard no racial comments. He saw Starr strike Joyner and the latter pull out his gun. The witness then got out of his car and intended to try to stop the fight. He was about 20 to 25 feet from them. He then saw Thomas get out of the car and thought that Thomas had a gun in his hand, with which he hit Starr. The witness then continued walking around the building toward the restaurant and did not see the parties when the shots were fired, although he heard about six or seven gunshots. One witness testified that he could see Seyl when the shot was fired, and that Seyl was on the pavement with the other individual kneeling over him. He heard the three shots which were fired when the gun was pointed toward Seyl's head.
Another witness testified that she was in a car with her husband and saw the beginning of the incident; that she saw Starr slap Joyner and that Starr had nothing in his hand. She further testified that she saw Joyner raise his hand and fire the gun in the air; that her husband then pulled her down below the car windows; that she heard scuffling near their car and heard three shots; that one of the bullets apparently hit their car and that shortly thereafter they heard three or four more shots. Her testimony of the statements made by Seyl or Starr did not indicate that they made the racial remarks testified to by the defense witnesses. Her husband substantiated her testimony.
We believe that it is necessary to reverse and remand this case for a new trial. The defendants tendered an instruction setting forth the law relative to voluntary manslaughter. The court refused the instruction. The State contends that the instruction was property refused in that it was not in conformance with IPI - Criminal No. 7.05. It is true that the tendered instruction was not in conformance with said IPI instruction but should have been. Ill. Rev. Stat. 1969, ch. 110A, par. 451(a).
However, an examination of the record reveals that no instruction was given relative to the law on voluntary manslaughter. Under the facts of this case, the defendants could have been found guilty of manslaughter under the indictments for murder. People v. Ostrand, 35 Ill.2d 520, 530; People v. Lewis, 375 Ill. 330, 335; Ill. Rev. Stat. 1967, ch. 38, par. 2-9.
The State does not contend that the facts of this case would permit only a conclusion of murder or not guilty by reason of self-defense. And, in homicide cases, if there is evidence in the record which, if believed by the jury, would reduce the crime to manslaughter, an instruction defining that crime should be given, if requested. (People v. Jones, 384 Ill. 407, 412; People v. Papas, 381 Ill. 90, 95.) Occasionally a defendant who raises the defense of self-defense to a charge of murder is convicted of manslaughter. (People v. Green, 23 Ill.2d 584, 588.) The difference between a justified killing under self-defense and one not justified, amounting to voluntary ...