APPEAL from the Circuit Court of Jackson County; the Hon.
RICHARD RICHMAN, Judge, presiding.
MR. PRESIDING JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
After a jury trial in the Circuit Court of Jackson County the defendant was convicted of the crime of murder (Ill. Rev. Stat. 1971, ch. 38, par. 9-1) and sentenced to a term of imprisonment of not less than 14 nor more than 15 years.
• 1, 2 The conviction appealed followed the second trial on the charge of murder, the first trial having ended in a hung jury. Defendant's initial contention is that the second trial on the charge of murder was barred by article I, section 10, of the Constitution of the State of Illinois and by the fifth and fourteenth amendments to the Constitution of the United States, which provide that a person cannot be put twice in jeopardy for the same offense. The double-jeopardy issue was raised by defendant's motion filed prior to commencement of the second trial and preserved in his post-trial motion. Attached to his motion were the affidavits of two jurors which stated "that after twelve hours of deliberation, I along with the other jurors were deadlocked with eleven votes of guilty of manslaughter and one vote not guilty." The motion recites that the three verdict forms given the jury in the first case were "guilty of murder," "guilty of manslaughter" and "not guilty." The defendant now argues that 11 jurors voted to find him guilty of voluntary manslaughter and one juror voted to find him not guilty, ergo, the jury at the first trial were in agreement that the defendant did not have the requisite state of mind to be guilty of murder, and thus defendant's rights against double jeopardy were violated when he was placed on trial the second time for the murder. Defendant's argument is novel, if not ingenious. Had defendant been convicted of voluntary manslaughter at the first trial, the verdict would have constituted an acquittal of the charge of murder. (Ill. Rev. Stat., ch. 38, par. 3-4(a); People v. Newman, 360 Ill. 226, 195 N.E. 645; People v. Dugan, 15 Ill. App.3d 1071, 305 N.E.2d 308.) The defendant asserts that a "hung jury," with no jurors voting to find the defendant guilty of murder, should also constitute an acquittal of the murder charge, but since the jury was not given a verdict form for "not guilty of murder," the jury was unable to express its alleged conclusion. But it is also well settled that a mistrial, declared because a jury could not reach a verdict, does not constitute an acquittal and does not bar a subsequent prosecution. (People v. Hudson, 46 Ill.2d 177, 263 N.E.2d 473; People v. Nilsson, 44 Ill.2d 244, 255 N.E.2d 432.) We are unable to find any sanction for the novel argument and procedure defendant advances, and it cannot be approved in this case. We cannot inquire into the minds of the jurors who sat in the first case to determine their mental attitude or reasoning process, and the affidavits of two of the jurors are clearly insufficient to furnish any foundation for establishing what transpired. Neither the defendant nor the court can use the affidavits as a passage into the jury room, the deliberations of the jurors or their several mental attitudes. Even superficial consideration of the suggested procedure shows it to be an invitation to the purest form of speculation. At its best it would constitute an intrusion into the province of the jury. The only manner in which the conclusion of a jury on a verdict may be recognized is by a formal return of its verdict to the court.
Argumentively speaking, it is very possible that several of the jurors did believe that the defendant was guilty of murder but they agreed to find the defendant guilty of the lesser offense of voluntary manslaughter in a spirit of compromise to reach a verdict. Although not cited by either party, People v. Griffin (1967), 66 Cal.2d 459, 426 P.2d 507, 58 Cal.Rptr. 107, is in point. In Griffin the defendant was charged with first-degree murder. He was convicted of that offense, but the conviction was reversed by the United States Supreme Court. A second trial was held, but the jury was discharged after failing to reach a unanimous verdict, and a mistrial was declared. After the jury was discharged, the foreman disclosed in open court that 10 jurors had voted for the acquittal and two jurors had voted to find the defendant guilty of second-degree murder. The defendant was subsequently convicted of first-degree murder at a third trial. The California Supreme Court affirmed the conviction and stated:
"We may not infer from the foreman's statement that the jury had unanimously agreed to acquit of first degree murder. There is no reliable basis in fact for such an implication, for the jurors had not completed their deliberations and those voting for second degree murder may have been temporarily compromising in an effort to reach unanimity." (66 Cal.2d 459, 464, 426 P.2d 507, 510.)
In another case where the same argument was made the Supreme Court of Arkansas reached a similar result in Walters v. State (1974), 255 Ark. 904, 503 S.W.2d 895. Also see Magee v. Superior Court of Santa Clara County (1973), 34 Cal.App.3d 201, 109 Cal. Rptr. 758.
• 3 We find the trial court properly denied defendant's motion for dismissal of the murder charge for alleged double jeopardy.
Aside from the double-jeopardy question, the defendant urges on this appeal that (1) he was not proven guilty beyond a reasonable doubt, and (2) the court erred in failing to instruct the jury as to the offense of voluntary manslaughter.
A review of the evidence is necessary. The State presented three occurrence witnesses. The first was Wayman Abbage. His testimony was that he was a cook at Intrigue's Kitchen, Carbondale, and was working there during the incident in question. The defendant and several companions came in and sat at a table and were drinking. Robert Shoffner (the victim) came in a short time later and sat at the same table. The witness was seated at the table when the defendant jumped up and said to Shoffner, "You don't never call my sister no M.F.," pulled his gun and started shooting. The first shot by defendant hit Shoffner in the back, and Shoffner was sitting down when the shooting started. The only gun the witness saw was the one possessed by defendant, and he did not hear Shoffner threaten or say anything to defendant. On cross-examination the witness altered his testimony somewhat. He said that he left the table and went into the kitchen before the shooting, and when he came back to the table the defendant was kneeling between his (defendant's) sister and Shoffner and defendant talked to Shoffner for 5 or 6 minutes. The defendant then jumped up, got behind Shoffner, yelled, "You don't call my sister no M.F.," and began shooting. After Shoffner was shot, he fell while turning very slowly to his left. Shoffner had his back to defendant and did not turn around before he was shot.
The next witness called by the State was Norvell Haynes. He testified that he was present at Intrigue's Kitchen during the incident in question, that there was some type of argument between Shoffner and defendant, that the defendant was standing near Shoffner's chair at the time and that he heard the defendant tell Shoffner, "You don't cuss my sister." Shoffner then got up to leave and walked toward the door. At that time the defendant shot Shoffner from behind. When he was shot Shoffner put his hands on his head and then fell to the floor, and after he fell the defendant kept firing into Shoffner.
The testimony of Haynes relative to the occurrence was at such wide variance from all other testimony on both sides of the case that it was rejected by the trial judge in passing on defendant's motion for a directed verdict and discounted by the State.
The next occurrence witness to testify for the State was Lucinda Vincent, whose testimony was very similar to that of Abbage. She stated that Shoffner sat next to Florence Sample, defendant's sister. Sample began talking to Shoffner in a loud voice and she told her brother, the defendant, that "Shoffner called me a M.F." The defendant then walked around the table and began talking to Shoffner. The witness heard defendant tell Shoffner, "Man it is just like this, you don't call my sister or no other woman a M.F. just like that." The witness then left the table to go to the jukebox and did not hear the entire conversation. While she was at the jukebox the defendant jumped up, screamed, "Don't call my sister no M.F.," backed away from the table and shot Shoffner. The witness did not see the first shot fired but turned around immediately after hearing it. Shoffner was still sitting at the table on the edge of his chair when the witness turned around, and after the first shot was fired Shoffner began to move as if he were going to get up from his chair. The witness than saw defendant fire four more shots at Shoffner. The witness further testified that she did not hear Florence Sample, defendant's sister, yell anything to the defendant just before the first shot nor did she hear Shoffner make any threats to the defendant. She had no reason to believe that Shoffner had a gun on his person.
The Jackson County Coroner testified that he was present when an autopsy was performed on the body of Shoffner. There were seven bullet wounds on Shoffner's body, one on the side of his head, two in his left arm, two in the abdomen and two in his back. The cause of death was described as shock due to hemorrhage due to multiple gunshot wounds. The coroner did not describe the wounds on the body of deceased as either entry or exit wounds. However, a chart was introduced into evidence which showed the locations of Shoffner's wounds. It reveals that there are two wounds on his back and only one on the front of his body. This suggests that at least one of the wounds on his back was caused by the entry of a bullet.
The defendant testified and admitted that he shot the deceased but claims that his actions were in defense of himself and of his sister Florence Sample. He stated that he went to Intrigue's Kitchen in Carbondale with his sister and several friends on the evening of January 27, 1973. At that time he possessed a handgun. He had allegedly purchased the gun earlier in the evening to give to another sister, Frances, for her protection. The defendant testified that while he and his friends were seated at a table in Intrigue's Kitchen, Shoffner entered the building and sat down at the same table. Shoffner sat next to the defendant's sister and at the opposite end of the table from the defendant. The defendant testified that he knew ...