APPEAL from the Circuit Court of Rock Island County; the Hon.
DAN H. McNEAL, Judge, presiding.
MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 22, 1972.
In a prosecution of an indictment for Murder in the Circuit Court of Rock Island County, the jury returned a verdict of guilty of Voluntary Manslaughter. The trial court charged the jury that it could find the defendant guilty of murder, voluntary manslaughter, or involuntary manslaughter. Following conviction, the court sentenced defendant to imprisonment in the penitentiary for not less than one nor more than 20 years. On appeal in this court, defendant asks reversal on the grounds, (1) that defendant was not proven guilty of voluntary manslaughter, and (2) that the maximum sentence of 20 years was excessive in view of the circumstances of the offense and the background of defendant.
From the record it appears that on October 31, 1970, defendant was involved in a fight with a woman in a crowded tavern. The manager stopped the fight and escorted the defendant outside. The manager then returned to the tavern to obtain defendant's coat. The sister of the girl with whom defendant had been fighting came to the door of the tavern. Defendant, who was standing outside, threatened to shoot the sister. Just as defendant fired her gun, a friend of the sister pushed the sister from the line of fire. The bullet struck and killed Perkins Rolax, Jr. Rolax was a stranger who had been standing at the bar.
Defendant and her sister testified at the trial that the sister of the girl with whom defendant had been fighting came to the door of the tavern and brandished a knife. Following the shooting, defendant fled, but, on counsel's advice, later surrendered herself and her gun to police. Defendant contended that the shooting occurred in self-defense.
In the statute (Ill. Rev. Stat. 1969, ch. 38, sec. 9-2), the crime of voluntary manslaughter is defined 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) Another whom the offender endeavors to kill, but he negligently or accidentally causes the death of the individual killed.
Serious provocation is conduct sufficient to excite an intense passion in a reasonable person.
(b) A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but his belief is unreasonable."
It appears that during the jury instruction conference with the court, counsel for the People and counsel for defendant, it was agreed that the shooting was not the result of a "sudden and intense passion resulting from serious provocation." The court accordingly did not instruct the jury with respect to subparagraph (a) of section 9-2 herein referred to but it instructed the jury as follows with respect to subparagraph (b):
"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 ...