APPEAL from the Circuit Court of Will County; the Hon. THOMAS
W. VINSON, Judge, presiding.
MR. JUSTICE DIXON DELIVERED THE OPINION OF THE COURT:
The defendant, Joseph Wright, was convicted of murder and was sentenced by the Circuit Court of Will County to a term of 14 to 20 years in the penitentiary. He appeals contending that certain instructions were erroneous.
Shortly before the occurrence, Felipe Gutierrez was driving north on Chicago Avenue in Joliet. As he approached the intersection of Chicago and Osgood Avenues, he began to make a right turn onto Osgood. He was unable to complete the turn, however, because another car had stopped on Osgood near the intersection and was blocking the street in front of him. Inside of his vehicle were his mother, wife, sister and three small daughters. He was taking his mother and sister home and was then going to a show with the rest of the family.
Joseph Wright was standing outside the passenger side of the stopped automobile by the curb, apparently talking to the driver. Mr. Gutierrez honked his horn a number of times and, shortly thereafter, the vehicle ahead of him began to move. As it pulled away he too began to move forward, while Joseph Wright, who had been at the curb, began to walk across the street between the two vehicles.
The testimony of the witnesses, with regard to what occurred next, differed from one another.
Mrs. Jonnie Cuffie was driving a car which was parallel to that of Gutierrez, but facing in the opposite direction. She said that Gutierrez put on the brakes to keep from hitting Wright and that after he did so the defendant put his hand on the hood of the car, walked around to the driver's side and kicked the car door with his left foot. At that, she stated, Gutierrez jumped out of his car and, while gesturing with his hands, said, "Man you can't block these streets people have to drive through here." Next, she said the defendant pulled a gun and stepped closer to Gutierrez while muttering a few obscenities. Gutierrez then picked up his left leg and right hand to hit the gun. Wright took two steps backward and Gutierrez took two steps toward him and with the gun pointed toward Gutierrez, Wright shot. She said she heard three or four shots but only saw two fired the second bullet going through the window of her car. Mrs. Cuffie saw no physical contact between Gutierrez and Wright and did not see Gutierrez spit at the defendant. When the gun was fired the first time by defendant it was pointed at Gutierrez's chest and Gutierrez's hands were both at shoulder height with nothing in them and he was not attempting to hit Wright. Further, that he did not reach toward his pocket.
Otis Common, Mrs. Cuffie's 15-year-old son, was sitting in the back seat of Mrs. Cuffie's car. He stated that after Gutierrez braked to avoid hitting Joseph Wright, Wright looked in the windshield said something, walked to the driver's side, and kicked the door making a dent which popped out as Gutierrez got out of the car. The defendant backed up as Gutierrez, raising his hands, hollered at him. The witness said Wright took two steps back, pulled out a gun and shot Gutierrez in the chest. He stated that Mr. Gutierrez neither put his hands near his pocket, nor spit at, nor punched or kicked the defendant. There was nothing in his hands. The barrel of the gun was never pointed up in the air.
Artena Hernandez, also a passenger in the Cuffie car, said that she did not see the defendant touch or kick the Gutierrez vehicle. Rather, she said, Gutierrez slammed the door to his car and advanced rapidly toward the defendant. She was unsure as to whether the defendant took out the gun as Gutierrez was getting out of the car or as Gutierrez was advancing toward him. She said that she did not see the deceased spit at the defendant nor strike any blow at defendant.
Paul Van Duyne, a lathe operator at Caterpillar, was headed south on Chicago and was stopped at the corner of Chicago and Osgood when the occurrence took place. He said his view was unimpaired and that he watched Gutierrez jump out of his car and walk to the rear of it, going after the defendant. Gutierrez, he testified, swung and kicked at the defendant, but failed to make contact. The defendant had his hands up in front of his chest to defend himself, and then reached into his coat and took out a gun. He fired two rapid shots while the gun was pointed at Gutierrez.
Fred Padovich, a steelworker, was a passenger in the Van Duyne car. He wore glasses but did not have them on at the time. He said that he watched Gutierrez get out of the car and move to the rear of it where the defendant was. They appeared to be talking or arguing and it looked as though Gutierrez was going to punch or kick Wright, but he never saw him throw the punch. He said that the defendant then stepped back, took out a gun and shot twice. He did not see the deceased spit at the defendant.
Ampal and Carolyn Gutierrez, the deceased's sister and wife, respectively, testified that the defendant, after walking in front of the car, walked around to the driver's side and kicked it. The deceased, who weighed 120 pounds and was 5 feet 8 inches tall, got out of the car and his sister heard him ask the defendant why he was blocking the road and kicking the car. Both men walked to the rear of the car whereupon, the women said, the defendant pulled a gun and shot him. Ampal Gutierrez heard three or four shots whereas Carolyn heard two. Neither saw blows exchanged nor saw the deceased spit or reach for his pockets.
Joseph Wright testified that after the driver to whom he had been talking pulled away he began to walk across the street toward his car. He heard a loud noise, the Gutierrez car engine, and, being startled, he jumped and threw up his hands. He said that as he continued across the street he heard Mr. Gutierrez say something. Gutierrez then jumped out of his car and asked the defendant what he had said. The defendant responded, "Oh man hold your breath." Gutierrez then stepped toward him and pushed him. Mr. Wright said, "What is this," and Gutierrez again asked what Wright had said. The defendant replied "I said say man hold your breath."
Next, he said, Mr. Gutierrez spit on his coat and he, in response, called him a name. Gutierrez then tried to kick him, but was pushed by the defendant as he did so, and therefore only touched the defendant's groin with his foot. That done, Mr. Wright said, Gutierrez began to fumble at his right coat pocket. Thinking he might be reaching for a gun, the defendant said he pulled out his own gun. He asked Gutierrez if he was going to leave him alone, but Gutierrez went to push him, so the defendant raised his gun upwards and fired. He said that he was not aiming it at Gutierrez. After the shot, Gutierrez backed off and then came back swinging wildly. The defendant stated that he tried to block him and then fired again, though he did not intend to shoot him.
Danny Knight was the driver of the vehicle which had been blocking the street. He pulled his car over to the side of the road and observed Joe Wright walk around the Gutierrez vehicle. He said that Wright was headed north when Gutierrez got out of the car and started chasing him, trying to hit him and kick at him. He said that Wright kept telling Gutierrez to back off and that Gutierrez ...