APPEAL from the Circuit Court of Tazewell County; the Hon.
JAMES D. HEIPLE, Judge, presiding.
MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
After trial by jury in the circuit court of Tazewell County, Skipper Merle Ahlberg, the defendant, was found guilty of voluntary manslaughter and he was thereafter sentenced to a term of not less than 16 nor more than 20 years in the penitentiary.
The defendant's conviction and incarceration stems from a series of events which commenced on Friday evening, October 16, 1970. On the evening of this date the defendant, being a teacher and coach in the Mackinaw school system, made arrangements to meet his wife Jan at the school's annual homecoming football game. Jan failed to keep this appointment and after the game the defendant returned to his home. The defendant's wife and the two minor children of their marriage never returned home on this particular night. Sometime between 2:00 A.M. and 3:00 A.M. on October 17th the defendant discovered the clothes closets in the home had been almost entirely emptied.
The defendant's testimony is that he almost continuously looked for his wife and children when they remained absent from the home. On Monday morning at approximately 8:00 A.M. the defendant called his wife's place of employment, the General Electric Plant in Bloomington. At this time the defendant talked to her, but she refused to tell him where she and the children were staying but instead informed him to get an attorney since she had filed for a divorce.
At 4:00 A.M. on Wednesday, October 21, the defendant received a call from his wife. At this time they talked for approximately an hour and a half. The bulk of the conversation consisted of defendant's efforts in trying to persuade his wife to return home; however, she advised him that he was to be in her attorney's office in Eureka at 9:15 A.M. for a consultation.
The defendant met with his wife and her attorney at the appointed time and consented to a separation agreement. After this meeting he drove his family to Mackinaw, left the children with a baby sitter and then took his wife to her place of employment. The same evening at approximately 5:15 or 5:30 P.M. the defendant called at his wife's place of employment to take her home but was informed that she had already gone home because of illness. The defendant returned to Mackinaw, went to a store accompanied by his children and then went to his home. On arriving there he found present his wife and a friend, Gerald Sweckard. Upon the defendant attempting to use the telephone an argument ensued and he was informed by his wife that her permission was needed if he was to use the phone. Other remarks were made by the defendant's wife which he testified as "weren't very nice" and the friend Sweckard then departed.
The defendant testified that his wife informed him that she was tired of being the nice school teacher's wife and that she was unhappy living in Mackinaw. Also he testified that he was informed by his wife that he had never satisfied her sexually and that she had found an older man who could love her and the two children more than he could and that she was going to get a divorce. The defendant's testimony is that from this point of time until he was later found driving on a country road he has no recollection of his actions.
Testimony from neighbors of the defendant establish the fact that he dragged his wife from their home, beat, kicked and stomped her causing injuries from which she later died.
The defendant was indicted for the crime of murder but as we have previously stated was found guilty of the crime of voluntary manslaughter and in this appeal he raises as his first issue that the evidence in the record does not support a conviction for voluntary manslaughter beyond a reasonable doubt.
It is the defendant's position that the evidence adduced during the course of his trial indicates that he was either guilty of murder or he was not guilty by reason of insanity since evidence of the type of provocation necessary to support a voluntary manslaughter conviction is not present.
Section 9-2 of the Illinois Criminal Code of 1961 (Ill. Rev. Stat. 1969, ch. 38, par. 9-2) specifically sets forth the elements of the crime of voluntary manslaughter. The pertinent part of this statute provides:
"9-2(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 * * *
Serious provocation is conduct sufficient to excite an intense passion in a reasonable ...