APPEAL from the Circuit Court of Kane County; the Hon. JOHN S.
PETERSEN, Judge, presiding.
MR. JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT:
The defendant, Jose Hernandez Zertuche, was indicted for murder, found guilty in a jury trial and sentenced to the penitentiary for a term of fifty years.
It is undisputed that on the evening of August 28, 1970, the defendant shot Richard Ochoa in front of the Guadalupano Club in Elgin, Illinois. Ochoa died from the wound ten days later. There were no eyewitnesses to the actual shooting.
The defendant admitted the shooting but alleged self-defense. At the trial, he testified that he first became acquainted with the deceased in Michigan in 1960 or 1961 and met him again in Elgin in 1969; later, having no money, Ochoa moved in with him and they lived together for two months; that after moving out, Ochoa, without defendant's permission, charged a case of beer and ten dollars to defendant's account at a local tavern. Informed of this debt by the proprietor of the tavern, he approached Ochoa about payment, but Ochoa refused and called him names.
Zertuche further testified that during the late afternoon on the day of the shooting, he saw Ochoa at a tavern and Ochoa called him names; he became frightened and left. Later that evening, he went to the Guadalupano Club and saw Ochoa sitting across the bar from him, laughing and making gestures; he went to the men's room, Ochoa came in, swore at him, pushed him, and so frightened him that he hastily left the men's room. Defendant stated that when an off-duty police officer (in the Club in a social capacity) left, he followed a minute later in order to have "some protection". After he exited the Club and was on the sidewalk a few feet away from the door, he heard the door slam behind him, he turned, saw Ochoa coming toward him as if to tackle him, became frightened, pulled out a gun he had been carrying to protect himself from Ochoa, and shot him.
Zertuche also testified that when Ochoa lived with him he had observed him cleaning a gun and knew it was Ochoa's habit to carry the gun on his person or in his car. There was evidence that Ochoa was seventeen years younger, taller and heavier than Zertuche.
Having been informed of his rights, Zertuche, when first questioned by the police, allegedly stated Ochoa had been giving him "a hard time" that night, calling him an "old goat" and an obscene name; that Zertuche told Ochoa they would go outside and settle it; outside the Club, Ochoa again called Zertuche an old goat and Zertuche then shot him. On the stand, the defendant denied making these statements to the police. Except for the existence of the tavern debt charged to Zertuche, the defendant's version of happenings was uncorroborated.
On appeal, defendant contends that the trial judge erred in refusing to give jury certain instructions, one based on IPI Criminal 7.05 which defines the crime of voluntary manslaughter, as follows:
"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."
The court also refused to give defendant's instruction which stated the issues in the offense of voluntary manslaughter and defendant's instruction which was a verdict form for conviction of voluntary manslaughter.
"* * * in homicide cases, if there is evidence in the record which, if believed by the jury, would reduce the crime to voluntary manslaughter, an instruction defining that crime should be given, if requested." [Citations omitted.] People v. Joyner (1972), 50 Ill.2d 302, 306.
The defendant contends the jury could have found from the evidence that Zertuche had an unreasonable belief that he was justified in using lethal force to protect himself and, consequently, could have found him guilty of voluntary manslaughter rather than murder. (See, Ill. Rev. Stat. 1969, Ch. 38, Sec. 9-2(b).) The State argues that, assuming the actual occurrence of events which defendant described, no facts or circumstances existed from which the defendant could have formed a reasonable or unreasonable belief that he was justified in using lethal force to protect himself.
• 2, 3 At the request of the defendant, the trial judge instructed the jury on the law of self-defense by giving IPI Criminal ...