APPEAL from the Circuit Court of La Salle County; the Hon.
WALTER DIXON, Judge, presiding.
MR. PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
Bradley E. Arnold, Sr., the defendant, was convicted of the murder of Patricia L. Arnold after a jury trial and sentenced to a term of 30-50 years in the penitentiary. On appeal, defendant claims that the trial court erred in refusing his tendered instruction on the issue of voluntary manslaughter, and that he was not proven sane beyond a reasonable doubt at the time of the alleged offense after presenting a defense of insanity. Alternatively, defendant claims that his sentence was excessive and should be reduced. We have also taken with the case defendant's motion for summary reversal and his motion that we consider his charge that his retained trial counsel was guilty of a conflict of interest which requires that the case be reversed.
The fact that defendant shot Patricia Arnold on October 5, 1970, with a .16-gauge shot gun and that death resulted from the shooting is not disputed. Defendant went to the home where his estranged wife lived with their three children on the evening of October 5, 1970, and found no one at home. His oldest son, Bradley Arnold, Jr., was the first to return. He came from the home of neighbors, the Mirabals, where the other two children remained until later.
Defendant asked Bradley where his mother was and was told that she was out bowling. Defendant responded that she was not out bowling but was having dinner with another man. In the course of the conversation defendant asked his son "How could I love a mother that goes out and leaves her children at night?" *fn1 Defendant, after some 25 minutes of conversation with his son, went out and moved his truck from the front of the house to a location about a block away. He returned to the house shortly before 10:30 P.M.
Approximately 20 minutes later, defendant's daughter Paulett returned from the Mirabals, followed by his son Rick. George Mirabal had a 30-second conversation with defendant at that time and described defendant as looking "glassy-eyed", as if he had been drunk or crying.
After the children went to their rooms, defendant continued to sit in the living room. One of the children observed defendant trying to hide a shotgun under the chair in which he was sitting. (There was evidence that the gun was kept in a closet in the Arnold home. However, no shotgun shells were found there. Ammunition similar to that found in the weapon was found by the police in defendant's separate trailer home.) Later the lights were turned off and defendant sat in darkness.
About 11 P.M. Patricia Arnold returned home. Defendant confronted her in the hallway which was a short distance from the children's bedrooms and said, "I know where you have been". He then demanded custody of the children. Mrs. Arnold did not reply but moved to close the bedroom doors. Defendant then shot her. One of the children testified that his father said, "Die, you son of a bitch, die".
Defendant first claims that the jury could have concluded from the evidence presented that sufficient provocation existed to reduce the offense from murder to manslaughter. Consequently, he argues that the court's refusal of his instruction on manslaughter was reversible error. In the alternative, he contends that under the circumstances we should reduce the offense to voluntary manslaughter. We do not agree.
• 1 It is of course true that it is reversible error to refuse an instruction defining a lesser included offense if there is evidence in the record which, if believed, would reduce the crime to the lesser offense. (People v. Joyner (1972), 50 Ill.2d 302, 306; People v. Bembroy (1972), 4 Ill. App.3d 522, 525-527.) However, it is equally well established that where the evidence clearly demonstrates that the killing is murder, a manslaughter instruction is erroneous. People v. Latimer (1966), 35 Ill.2d 178, 182; People v. Handley (1972), 51 Ill.2d 229, 235.
The testimony upon which this defendant relies is not, even if believed, evidence from which the jury could find that the lesser included offense of voluntary manslaughter was committed rather than murder.
There is testimony that on September 24, 1970, and several times thereafter in the interval before the shooting, defendant told his neighbor George Mirabal that his wife was cheating on him and that she had admitted that fact. There is also testimony that 2 days after the 24th of September defendant attempted suicide by taking an overdose of sleeping pills.
Further, an attorney whom defendant consulted when his wife filed for divorce testified on defendant's behalf that defendant came into the office in the latter part of September, 1970, and asked what he could do about the filing of the divorce. At that time defendant indicated that his wife was having an affair with another individual named Seipp, but that all he wanted to do was to keep his family intact. Defendant returned to the attorney's office a day or two prior to October 5, approximately 1 week after the first visit, and stated that he did not feel it would do any good to contest the divorce.
Defendant received the summons in the divorce action on October 1, 1970. On October 5, Mrs. Arnold was informed by her attorney that the divorce decree would be entered, and that afternoon a copy was mailed to the defendant. That same afternoon, defendant testified, he filled out his truck driver's log in anticipation of the next day's work.
Nevertheless defendant alludes to the absence of his wife as confirming his suspicions of adultery. He claims that his wife's subsequent "refusal" to give him custody of the children ...