APPEAL from the Circuit Court of Cook County; the Hon. EARL E.
STRAYHORN, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Defendant, Rodga Turner, was indicted for murder and armed robbery (Ill. Rev. Stat. 1971, ch. 38, pars. 9-1 and 18-2). The jury found defendant not guilty of armed robbery and guilty of voluntary manslaughter (par. 9-2). The court entered judgment upon the findings of the jury and sentenced defendant to 4 to 12 years in the penitentiary. Defendant appeals from this judgment.
On appeal defendant contends as grounds for reversal that the trial court erred in (1) limiting defendant to 10 peremptory challenges; (2) restricting voir dire examination of jurors; (3) instructing as to reasonable doubt; (4) denying his motion to strike testimony of a witness for failure to understand the nature of an oath; and (5) giving an instruction as to circumstantial evidence.
Adam Strong testified for the State that on July 28, 1972, he and defendant were walking west on 64th Street in Chicago when defendant suggested they rob somebody; that defendant stopped Clyde James [deceased], argued, then stabbed James; and that defendant took money from James' pocket and ran away. Barbara Brown testified that on the night in question she saw two men fighting and a third person standing a couple of feet away; that as she started walking toward them she saw one man fall and the other two run away. She did not see anyone go through the fallen man's pockets, and although she was unable to identify the two who ran away, she identified James as the person who had fallen.
The theory of defendant's defense was that he stabbed James in self-defense. He testified that after Strong accidentally bumped into him, James threw a bottle at them, pulled a knife and started toward defendant. According to defendant, he picked up the knife after he had wrested it from James' hand; James struck him in the shoulder, causing the knife to make an upward motion which caused him to "stick the man in the arm." Defendant stated that he dropped the knife and "trotted" away, and when he turned around he saw James getting up from the ground.
Officer Sykes testified that on the day of the arrest defendant said the "old man" was drinking wine and threw the bottle at them. Prior to defendant's testimony it was stipulated that a toxicologist would testify that there was no alcohol in the blood of the deceased, and that the pathologist who conducted the autopsy would testify that James had four stab wounds in his chest, one in his left arm, and one in the middle of his back. Louis James testified that the decedent was his uncle and was 84 years of age.
• 1 Defendant's first contention on appeal is that he was improperly limited to 10 peremptory challenges in a murder trial. We disagree. The same argument was raised, considered and explicitly rejected in the recent case of People v. Watkins (1974), 17 Ill. App.3d 574, 308 N.E.2d 180. There the court held that since the defendant was tried subsequent to the United States Supreme Court decisions of Furman v. Georgia (1972), 408 U.S. 238, 33 L.Ed.2d 346, 92 S.Ct. 2726, and Moore v. Illinois (1972), 408 U.S. 786, 33 L.Ed.2d 706, 92 S.Ct. 2562, which struck down the death penalty as cruel and unusual punishment, the defendant's case falls within the provision of section 115-4(e) of the Code of Criminal Procedure (Ill. Rev. Stat. 1973, ch. 38, par. 115-4(e)), which allows only 10 peremptory challenges where the punishment may be imprisonment in the penitentiary.
Defendant refers to the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005-8-1A(6)) which provides that in any case where a defendant is convicted of murder the State shall seek imposition of the death penalty where the individual was killed in the course of a robbery. He impliedly suggests that our legislature intended to retain capital punishment contrary to the decisions in Furman and Moore and that he was therefore entitled to 20 peremptory challenges because this was a capital case. We need not reach this issue. Section 5-8-1A(6), even if demonstrative of the alleged legislative intent to retain the death penalty which we do not here concede did not become effective until November 8, 1973, almost 4 months after defendant's trial.
Defendant next contends that the trial court erred in limiting interrogation by defendant on voir dire to submitting in writing questions to be asked of the prospective jurors by the court. The court conducted the entire examination of jurors. Defense counsel submitted only one set of questions which were propounded to the jurors by the court.
• 2 Supreme Court Rule 234 (Ill. Rev. Stat. 1973, ch. 110A, par. 234) states: "The judge shall initiate the voir dire examination of jurors * * *. * * * The parties or their attorneys shall be allowed a reasonable opportunity to supplement such examination, * * *." In People v. Carruthers (1974), 18 Ill. App.3d 255, 309 N.E.2d 659, we held that direct questioning of prospective jurors by the parties or their attorneys during voir dire examination is not to be totally prohibited. (People v. Lobb (1959), 17 Ill.2d 287, 161 N.E.2d 325; Street v. Finney (1973), 9 Ill. App.3d 638, 292 N.E.2d 553.) However, we also held in Carruthers that no prejudicial error occurs in the selection of jurors by such procedure where there is no evidence that thereby defendant's attorney [was] "prevented from discovering any fact or reason why a prospective juror might be biased or lack the essential qualifications for service as a juror in the case." 18 Ill. App.3d 255, 261.
• 3 In the instant case the court advised the prosecution and the defense that it would conduct voir dire examination of prospective jurors, and added: "To the extent that if there is some area that the Court has not covered, if I so make a determination that [then] I will let counsel go into this on their own." In the record we find no objection made by defendant as to the conduct of the voir dire examination. No additional written questions were submitted to the trial court, nor were any oral objections made challenging any prospective jurors on the grounds of bias or lack of essential qualifications for service. As stated in People v. Lobb, 17 Ill.2d 287, 300:
"However, a failure to permit pertinent inquiries to enable a party to ascertain whether the minds of the jurors are free from bias or prejudice which would constitute a basis of challenge for cause, or which would enable him to exercise his right of peremptory challenge ...