APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
C. FITZGERALD, Judge, presiding.
MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
Harry Harling (defendant) was indicted for murder (Ill. Rev. Stat. 1971, ch. 38, par. 9-1). After a bench trial, he was found guilty of voluntary manslaughter (Ill. Rev. Stat. 1971, ch. 38, par. 9-2(b)), and sentenced to 3 to 9 years. He appeals.
Defendant urges here that he was acting reasonably when he stabbed the deceased, or, in effect, that he used justifiable force such as he reasonably believed was necessary to save himself from imminent death or great bodily harm (Ill. Rev. Stat. 1971, ch. 38, par. 7-1). The People respond that the proof shows beyond reasonable doubt that defendant's belief regarding necessity for use of force was unreasonable so that he was properly found guilty of voluntary manslaughter.
Defendant and the victim were both patrons in a tavern. They were similar in height, with the victim being about 6 feet tall and defendant 5 feet 11 inches. However, defendant was approximately 50 pounds heavier.
Another patron testified that a difference of opinion arose regarding whether or not defendant had placed a $5 bill on the bar. Defendant stated that he did and that the bill had disappeared. The victim contradicted this statement. One word led to another and a wrestling match, or fight, between the two men began. In a short time the victim had defendant down on the floor on his back and was on top of him. The men then got up and shook hands. The witness then saw defendant walk toward the door with the victim following perhaps 4 or 5 feet behind. This witness saw the victim reach the front door, presumably after defendant had left in front of him. The witness then turned away and next observed defendant standing some 2 feet inside the front door and saw a person, that he later realized was the victim, lying on the floor flat on his back and bleeding. He did not at any time see a knife in defendant's possession. He estimated that 7 or 8 seconds elapsed between the time he saw the victim leave from the front door and when he observed him on the floor.
The bartender verified the conversation regarding the presence of defendant's $5 bill on the bar. He saw the defendant then strike the victim after which there was a fight and a wrestling match. He then heard defendant, in effect, concede that his opponent had been the victor and thought he heard defendant say, "Let's be friends." During this altercation, the witness saw the victim holding the defendant by his neck. He next saw the parties walk toward the door with defendant slightly in advance. The victim then gave defendant a hard slap on the head with his open hand and both of them walked out the door. The bartender next observed the victim backing into the tavern. He took a bar stool and then fell, with face up. He then saw that defendant had returned, almost at the same time, and was standing near the victim's feet. Up to that point he had not observed a knife. In about a minute some police officers entered the tavern. They exhibited a knife to him. He estimated that about 1 or 2 minutes elapsed between the time the victim left and the time that he reentered.
One of the police officers testified that he was driving by and observed defendant walking out of the tavern. After two steps, defendant looked in the direction of the police car, turned quickly about and went back to the tavern. The officer entered and saw the victim lying on the floor with stains about his shirt. He then saw defendant bending over a pinball machine and asked what he was doing. Defendant responded that he was looking for his glasses. After speaking to the bartender, the officer told defendant that the person upon the floor had either been shot or stabbed. Defendant responded that he did not stab anybody. He was then placed under arrest.
A closed pocketknife was found by police immediately outside the front door. The parties stipulated that the pocketknife had a master blade 3 1/4 inches long and five-eights of an inch wide. Pathological examination disclosed that the cause of death was "secondary pneumonia, complicating stab wound of the abdomen-stomach, aorta, left renal artery, interior vena cava, and left renal vein * * *."
The parties also stipulated that defendant's T-shirt was stained with human blood of type B, blood type of the victim, and also with human blood of type A. The master blade of the pocketknife had traces of human blood of type B.
In behalf of defendant, a police officer testified that he first saw defendant wearing a bloody T-shirt in the doorway of the tavern. Defendant also had a cut inside his left ear and there was blood in the lower part of this ear. The blood appeared to be dried.
Defendant agreed with the testimony of the witnesses for the State regarding the incident of the $5 bill which he stated he had placed upon the bar. Defendant also stated that he walked over to the end of the bar and asked to see the bartender's money to determine if that person had a $5 bill. The bartender exhibited the money in his pocket which was only single dollars. Defendant's conversation with the deceased, which resulted in a fight, then took place. Defendant did not know who struck the first blow. The fight lasted a couple of minutes and defendant was on the ground with arms extended and the deceased kneeling on his arms. Defendant was being choked by deceased. Defendant said then that he quit and did not want to fight any more. The deceased then let him up and defendant told the deceased that he had won "fair and square * * *."
The defendant then started to turn around to go home. When he was half turned, the deceased told him, "here's something to take with you * * *." The deceased then struck defendant a blow on the side of the head in the ear. Defendant was dazed but he kept on walking out the door. Defendant turned to the wall at the right alongside the door. While he was standing there, he happened to look up and saw the deceased standing in the doorway. The deceased remarked that defendant didn't "look that bad hurt * * *." Defendant responded, "that's no thanks to you * * *." Defendant also stated that he had quit and that he was going home. The deceased then said he was going to make sure that defendant did not come back. He struck defendant again on the side of his head with his hand. Defendant moved a little away and again told deceased that he had quit and that he just wanted to go home and wasn't going to come back. The deceased then struck defendant in the head with his fist so that defendant's head went back and hit the backboard behind him. Deceased then jumped at defendant, grabbed him about the neck and began to choke him. Defendant could not break the grip and could not breathe. Defendant then reached into his pocket, opened the knife and struck the victim once with it. The deceased then released his hold. Defendant leaned back but could not breathe at that time. Defendant then gave deceased a push and deceased moved inside the tavern. He went to the corner of the bar and fell over. Defendant went inside and looked at him. He later saw the police officers enter the tavern. Defendant told the police that he did not stab the deceased.
On cross-examination, defendant testified that he had been drinking beer during the evening and had a little less than 10 beers. Regarding the origin of the fight inside the tavern, defendant testified that he and the deceased "struck each other almost simultaneously." Defendant testified that he pulled the knife out of his pocket with the right hand and then he was obliged to let go of the deceased to open ...