APPEAL from the Circuit Court of Cook County; the Hon. FRANK
J. WILSON, Judge, presiding.
MR. JUSTICE EGAN DELIVERED THE OPINION OF THE COURT:
The defendant was indicted for the murder of Dale Mitchell; a jury found him guilty of voluntary manslaughter and he was sentenced to a term of 6 to 18 years.
On July 3, 1973, the deceased, Dale Mitchell, left his wife about 10:30 p.m. after an evening of drinking. His wife, from whom he was separated, was staying at her mother's home at 7215 South Princeton in Chicago. Mitchell lived at 7410 South Emerald. Mitchell arrived at the third-floor apartment of the defendant at 7220 South Harvard shortly after 10:30 that night. The defendant and his wife both knew Mitchell. Present in the apartment at the time of Mitchell's arrival were the defendant, his wife, his two sleeping children, and a neighbor woman with her three children. When Mitchell entered the apartment, the defendant, who was seated on a sofa, jumped up and said to Mitchell, "Dale, didn't I tell you to stay away from here, what do you want?" The defendant's wife testified that she asked Mitchell what he wanted and he replied, "I came to get my woman." The defendant then told Mitchell to leave and walked toward him. The defendant's wife testified that Mitchell went to reach in his pocket and a fight began. The deceased was considerably larger than the defendant. According to the testimony of the defendant, his wife, and the neighbor, Sandra Freelon, Mitchell choked the defendant and struck him in the stomach and on the head.
When the struggle began, the defendant's wife went to call the police and while in the bedroom took a gun from under the bed and went out to where her husband and Mitchell were fighting. She went to hand the gun to her husband but she was afraid Mitchell might take it. She wanted to shoot Mitchell herself but she was afraid she might shoot her husband.
The defendant and his wife both testified that he broke loose from Mitchell after about 5 or 6 minutes and ran out the front door of the apartment. The defendant went into the hallway outside the apartment front door and then ran back into the apartment after Mitchell had run past him in the hall. Once back in the apartment, the defendant grabbed the gun from his wife's hand and ran down the stairs to the street.
Rose Vazquez testified for the State that she lived immediately below the defendant's apartment; that after she heard a scuffle upstairs in the late evening hours of July 3, she saw Mitchell leaving the building; he stopped momentarily at the front gate and spoke to Mr. Lewis, the landlord of the building, who occupied the first floor apartment; Mitchell completed his conversation with Lewis and walked north toward 72nd Street; the defendant came out of the front gate walking fast in the direction of Mitchell; the defendant said something to Mitchell but she did not know what he said; Mitchell turned around and faced the defendant; the two men were 2 or 3 feet apart at that time; Mitchell threw his hands in the air even with his head and held them in that position for "a moment or so, a second"; Mitchell turned and ran north away from the defendant; she lost sight of Mitchell but saw "fire coming from [the defendant's] hand"; it sounded to her as if there were five or six shots fired.
Mitchell's body was found about 5:30 the following morning slumped over a log in a litter cluttered yard at 342 West 72nd Street. His open wallet was found on the ground behind his body, and no gun was found. The cause of death was a gunshot wound in the back. It was stipulated that the pellet recovered from the deceased's back was fired from the defendant's gun, which had three expended shell casings in the cylinder when turned over to the police.
The defendant contends that the court erred in excluding evidence of the general reputation of the deceased and of previous altercations between the deceased and the defendant; and in refusing to instruct the jury on self-defense. All three assigned errors may be disposed of by answering one question: Was there any evidence in the record, regardless of its source, which, if believed by the jury, would support a finding that the defendant reasonably believed that the force he exerted was "necessary to prevent imminent death or great bodily harm to himself"? Ill. Rev. Stat. 1971, ch. 38, par. 7-1; People v. Allen, 50 Ill.2d 280, 278 N.E.2d 762.
The only evidence of what took place at the time of the actual shooting was provided by the testimony of Mrs. Vazquez, the defendant's testimony and the defendant's statement. The defendant correctly argues that for the purpose of resolving the crucial question, we may disregard the inculpatory testimony of Mrs. Vazquez although she contradicts the defendant's version. That being so, we must look to the defendant's testimony or his statement to determine whether or not there is any evidence that would support a finding of self-defense at the time of the shooting.
In the statement given later that night to the police, the defendant said that he told Mitchell to leave but he refused; his wife was trying to get to the phone and Mitchell said, "If you move, I'll kill you" and "reached for his pocket"; that Mitchell swung at him and hit him on the sides and they "got to tussling"; Mitchell left and the defendant grabbed the gun from his wife and went outside and fired three shots at Mitchell. When asked if he was pointing the gun at Mitchell at the time the shot was fired, he said:
"A. Well, I pointed it at him for him to stop and turn around, you know, and he did something, he waved his hand back or something and I fired three times. I fired the first shot as he went around the corner, and then one through the gangway at him as I was across from him by the fire escape, he wasn't in the gangway.
Q. Did you ever see him with a gun last night?
Q. Did he ever try to shoot you at all?
A. No, he always told me he's going to get a contract on me and get me and my wife someway.
Q. The last time, did he come out with anything?
A. No, he reached for his pocket and then swung at me and hit me."
The defendant testified that he went out of his apartment after the deceased and shouted, "Hey motherfucker, didn't I tell you to leave me and my wife alone." At the time the deceased was 30 to 40 feet away. The record then discloses the following:
"Q. After you said that to him, did he stop or did he continue?
A. He turned around, and it looked like he went to make a movement toward his pocket.
A. His hand went down toward his pocket.
Q. Did they ever go up in the air?
A. They looked like they were coming down when I seen them, at the time I seen them.
Q. At the time what did you do?
A. I fired a couple of shots to scare him away.
Q. Were you firing at him when you shot at him?
A. Yes, I fired toward him to scare ...