APPEAL from the Circuit Court of Boone County; the Hon. JOHN
C. LAYNG, Judge, presiding.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
Nelson W. Boisvert, the defendant, appeals from his conviction of murder after a jury trial and from the imposed sentence of 20-35 years in the penitentiary. Defendant contends that the State's failure to prove his sanity and guilt beyond a reasonable doubt requires reversal, and that the court's refusal to give a tendered instruction defining involuntary manslaughter was error which requires a new trial.
On July 22, 1972, about 10 P.M., defendant and several of his friends went to the Boone Lake Camp grounds with various camping gear to get the camp site ready, while their wives apparently prepared the food at home. Another tent was pitched at their accustomed place, and defendant and his friends selected a different site close by. While his friends unloaded the cars and began to pitch the tent, defendant, who seemed tired, set up a cot and began taking a nap. Shortly thereafter, a group of campers which included the deceased, Terry Stiles, returned to their campsite from the swimming area. They were joking, laughing and making noise. This apparently disturbed or awakened the defendant who was sleeping on a cot some 20 or 30 feet away from the camp site of the Stiles' group. An argument regarding the noise ensued, after which defendant returned to his campsite.
Some minutes later defendant went again to where the Stiles' group was camping and apologized. He shook hands with Terry Stiles and another of the men and they engaged in a brief and casual conversation. During the conversation defendant uttered a profanity and Stiles asked him to apologize, which defendant did. The conversation continued for a short time and Boisvert returned to his campsite.
About 15 or 20 minutes later the defendant and one of his friends left for their homes to pick up the others. There was testimony that during the trip defendant seemed somewhat unhappy about the noise at the campsite. After arriving home the defendant was informed that his young daughter was still at a friend's house and had not yet come home. He became upset about this fact. He and his friend then loaded the car with additional camping material from his home, including defendant's shotgun.
The shotgun, when in the house, was always kept loaded for protection with double "O" buckshot in the top barrel and a number 2 magnum in the bottom barrel. It was defendant's usual practice to take his shotgun to Boone Lake, and most other campers would also carry guns. The Lake's facilities included a trap range and a rifle range.
After the defendant and his friend returned to the Boone Lake campsite, someone in the Stiles' group made a comment regarding the Boisvert tent. The defendant asked if they were knocking his tent, to which Terry Stiles responded, "No, if I was, it would be over by now". When one member of the Stiles' group started walking to the rear of a nearby car, the defendant began walking toward his own car. When he got to his car he reached in the open door, pulled out his gun case and told the members of the Stiles' group not to go for a gun. He asked for Stiles saying, "I want to talk to you. I want to talk to the guy who made me apologize. I want to talk to the loud mouth." There was testimony that he repeated this two or three times after which one of the Stiles group said that if he wanted to talk to Terry he would have to talk to all of them.
Defendant removed his shotgun from the gun case, and repeated that he wanted to speak to the guy who made him apologize. He said that he had a gun and that no one should try to get one. He then stated, "I have the safety off," and asked if they wanted a demonstration. He said, "I can get you all in one shot if I want to. I don't even have to aim. All I need to do is pull the trigger."
One of the Stiles' group tried to calm defendant by showing him that they had no guns and wanted no trouble. The defendant insisted that he did not want to talk to him but to the "loud mouth who made him apologize." At one point defendant instructed everyone to move away from Stiles.
It appears from the testimony that while defendant spoke to the Stiles' group he was holding the shotgun in his shoulder with one hand and with his finger on the trigger. There was a conflict, however, as to whether the gun was being pointed at anyone or was being waved around somewhat. This exchange lasted from 5 to 10 minutes. Finally, the defendant relaxed his weapon and began to turn away. There was a very slight pause. The defendant said, "I am going to jail anyway * * * I don't like you anyway," and he turned back, brought the gun up and it went off. All this happened almost simultaneously. Terry Stiles was struck and killed, and the defendant fled.
There was testimony that the shotgun had a "hair trigger" and would go off with little pressure.
The State introduced a statement given to the Winnebago County Sheriff's police on July 23, 1972, by defendant. In the statement defendant told of his complaints of the noise at the camp site and then said:
"And when we were arguing and this one guy went walking back to the back of a car and I was walking toward my car because I thought the guy was going to get a gun. I got back to my car and got my gun and told the other group of people not to go for any gun, the safety wasn't on, and as I turned and pointed the gun, it went off. The gun has a `hair' trigger * * * When the gun went off the man I hit wasn't even the man I was mad at."
Defendant, however, testified in his own behalf at the trial that he did not remember an argument at the camp site nor a subsequent apology for swearing. He did not recall that he helped pull up the tent or that he had any other arguments about the tent. When asked about the shooting he said he remembered that there was an argument. "I pulled my gun out of the gun case and I remember saying not for them to go for a gun, and I pulled it out and turned around and it went off." He did ...