APPEAL from the Circuit Court of Cook County; the Hon. GEORGE
E. DOLEZAL, Judge, presiding.
MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT:
The defendant James Carlton was indicted for the murder of Randall Wilkins. He was convicted by a jury of involuntary manslaughter and was sentenced to 3 to 5 years' imprisonment. He contends that the homicide was accidental; an involuntary manslaughter instruction was not justified by the evidence; instructions for murder and involuntary manslaughter did not adequately apprise the jury of the law; the trial court erred in not granting his motion for a change of venue, in not granting him probation and by imposing an excessive sentence.
A tenant of a Chicago apartment building discovered the body of Randall Wilkins on the floor of an elevator about 7 P.M., May 7, 1971. She told her companion to hold the door and ran to her apartment and telephoned the police. When she came back she saw a hole in Wilkins' forehead which was surrounded by a grey area. She called the police again. Shortly before they arrived, she noticed a gun by a trash can near the elevator.
Two police officers responded to the calls. They found that Wilkins was still breathing, so a police vehicle was summoned and he was taken to a hospital. He died there that evening.
After talking to people at the apartment building, the officers went to the defendant's home. They arrested him, told him his rights and brought him to a police station. At the station he gave a statement to Theodore O'Connor, a homicide investigator. Carlton said that he and two friends, Gregory Banks and Wilkins, entered the elevator about 7 P.M. Banks was carrying a .32-caliber revolver and gave it to Carlton. Carlton handled the gun and cocked it. The gun went off, shooting Wilkins in the forehead. Carlton said that he did not know if he pulled the trigger, "I must have but it just went off." Wilkins slumped to the floor. When the doors of the elevator opened, Carlton said that he and Banks got scared so they wiped the gun free of fingerprints, threw it behind a trash can and ran. O'Connor testified that when he took Carlton's statement, the defendant seemed upset, his eyes were watery and he appeared to be remorseful.
O'Connor had gone to the hospital earlier and had noticed powder around the wound in Wilkins' forehead. The powder indicated to O'Connor that a gun had been fired from about 1 to 1 1/2 feet away from Wilkins' head. O'Connor asked Carlton how far away Wilkins had been when the gun fired, and Carlton answered about 4 feet. O'Connor did not include this question and answer in his police report nor in his testimony at the preliminary hearing.
Tests proved that the bullet lodged in Wilkins' head was fired from the gun found near the trash can. An expert from the firearms unit of the Chicago Police Department testified that he examined the gun and determined that 4 to 4 1/2 pounds of pressure on the trigger was needed to fire it when the gun was cocked. Twelve and a half to thirteen pounds of pressure were needed when it was not cocked.
A pathologist testified that the bullet struck Wilkins in the forehead and deposited in the back of his head at the same horizontal level at which it entered the forehead. Had Wilkins' head been held in a vertical position, the path of the bullet would have been parallel to the ground. Two explanations follow from the description of the bullet's path: Wilkins was either looking down at the muzzle of the gun or the gun was raised to the level of his forehead when it was discharged. The pathologist testified that he could not determine from the path of the bullet the defendant's stance or his position relative to his companions when the gun was fired. Carlton told the police that he held the gun at waist level.
The defendant's mother was his only witness. She testified that James came home on the evening of May 7 and told her and her husband that he had accidentally shot Randall Wilkins. She said he was upset and crying. Her husband went to the scene of the shooting and James called the police. She stated that he told the police where Wilkins was and that he had shot him accidentally.
Section 9-3(a) of the Criminal Code states:
"A person who kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly." Ill. Rev. Stat. 1969, ch. 38, par. 9-3(a). Section 4-6 of the same code states:
"A person is reckless or acts recklessly, when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation." Ill. Rev. Stat. 1969, ch. 38, par. 4-6.
• 1 Involuntary manslaughter is a lesser offense included in the crime of murder. An involuntary manslaughter instruction may be given in a murder case if the act of the defendant which caused death can reasonably be found to have been perilous to life and performed recklessly. (People v. Bembroy (1972), 4 Ill. App.3d 522, 281 N.E.2d 389.) Carlton was handed the gun as he entered the elevator. Wilkins was standing from 1 to 4 feet away from him. When the gun was discharged, it was pointed directly at Wilkins' head. Four to thirteen pounds of pressure had to be exerted on the trigger in order to fire the gun. From these facts (and the level course of the bullet through Wilkins' head and the powder marks around its point of entry) the jury could have found that the shooting was deliberate and the homicide murder; or it could have found that the shooting was unintentional, but that Carlton's handling of such a dangerous weapon in a small elevator was so reckless that it was a gross deviation from the standard of care which a reasonable person would exercise in a like situation. The court was correct in instructing the jury on involuntary manslaughter.
The defendant contends that the jury was bound to accept the story he told the police and his parents because it was neither improbable nor contradicted. He cites People v. Jordan (1954), 4 Ill.2d 155, 122 N.E.2d 209, where the defendant made a statement to the police and testified in court that the deceased ran after him swinging something like a billy club; the defendant punched him and the deceased fell and struck his head on cement causing injuries which resulted in death. In Jordan the defendant's statement and testimony provided the only evidence of what happened when the two men met. Testimony of other witnesses corroborated the defendant's story and no material part ...