APPEAL from the Circuit Court of McLean County; the Hon. WAYNE
C. TOWNLEY, JR., Judge, presiding.
MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
Defendant Charles Jenkins was convicted of murder by the McLean County circuit court and sentenced to 14 to 25 years' imprisonment. He appeals the conviction on the grounds that the trial court erred in denying defendant's tendered instructions on voluntary and involuntary manslaughter, that he was not proven guilty of murder beyond a reasonable doubt, and that he should have been allowed discovery of certain police reports.
At about 10:30 p.m. on August 17, 1972, defendant went to the apartment of his wife, Virginia Jenkins, from whom he had been separated for several weeks and who had filed for divorce. He entered the second-story apartment through a rear window. Defendant testified that the apartment looked dark and he expected to find no one there because his wife and infant daughter had been staying with his wife's mother. Defendant testified that he entered the apartment through the window because he did not have a key. He also said that he went to the apartment because "I was thinking about my daughter and my wife, my daughter would have been six months old the next day, and I just wanted to go home where I belonged, where I used to live with my wife."
Mary Lou Pacher, a babysitter, was in the apartment with defendant's daughter when defendant entered. Defendant asked the babysitter where his wife was. Although the testimony of defendant and the babysitter is somewhat conflicting on this point, the babysitter apparently told defendant that his wife was at the State Fair with the deceased, George West.
Defendant remained at the apartment for several hours until his wife returned. During that time he threw away a rose that had been given to his wife by West. He also drank some beer, played with the baby, and carried around a paring knife he found in the kitchen. According to the babysitter, he occasionally looked out of the front window to see if his wife was coming. Defendant turned the lights off in the apartment because "if the lights were off I figured Virginia would come up to the apartment by herself without George or anybody, because she would think the babysitter was in bed. And, I wanted to talk to Virginia alone."
Defendant asked the babysitter to leave several times, and finally she left. She testified that defendant said he wanted "to get Virginia and George West in one way or the other and he wanted me to go home because he did not want me to get hurt." However, she admitted that defendant did not use any force to get her to leave.
A few minutes after the babysitter left, defendant's wife returned from the State Fair. She drove her own car, and West followed in his car. She noticed that the lights were out in the apartment. She went upstairs to the apartment and West remained in his car. When Mrs. Jenkins opened the apartment door, defendant pulled her inside the apartment and slammed the door. Defendant held the paring knife against Mrs. Jenkins' throat and began to ask her "how come she was running around with George again, and where George was, where she had been." When Mrs. Jenkins told him that West was out in the car, he took her to the front window and told her to yell down to West to tell him to leave. Defendant testified that he wanted West to leave so he could talk to his wife alone. Defendant then heard footsteps on the stairs and led his wife to the door to tell West to leave. Mrs. Jenkins then ran out of the apartment and down the stairs. Defendant followed her and met West on the landing.
Defendant is the only witness to what next occurred. Defendant recalled that he still had the knife in his hand at that time. West, who weighed approximately 350 pounds, took hold of defendant's upper arms but defendant threw up his arms and broke the hold. There was a scuffle which lasted for only a few seconds, then defendant broke away and ran downstairs after his wife. He did not remember stabbing West. Defendant testified that he did not have the knife when he ran downstairs. George West also came down the stairs and fell as he went outside. He had a stab wound on the left side of his back. Mrs. Jenkins ran to West's car and got in. She looked back and saw West fall. As she prepared to drive away, defendant ran to the car and took hold of the door handle on the passenger's side. Mrs. Jenkins testified that the car window was open and that defendant reached inside with the knife in his hand. As defendant tried to enter the car, Mrs. Jenkins drove away, and defendant was pinned between West's car and another car parked on the street. Defendant stated that the next thing he remembered was being in the hospital with a back injury. A paring knife was later found in the back seat of West's car. Defendant was arrested by the Bloomington police. He escaped from the hospital where he was taken for treatment of the back injury, and was apprehended in Chicago.
West's wound at first appeared superficial, but later a nick was found on his left kidney. Complications developed, and West died on August 28, 1972.
Mrs. Jenkins testified that at the time of the trial she was 19 years old and her husband 21. She and her husband had known West, who was in his early forties, for about 4 years, and her husband and West had been good friends up until the stabbing incident. She also said that she had often talked with West about her marital difficulties, but had not dated him. West had sent her a rose on the day of the stabbing and had given her other gifts, including a diamond cocktail ring.
She also testified that about 2 weeks before the stabbing incident she was in the car with defendant when he tried to get her to go out into the country with him and told her "that he was going to do a job on [her]" and that she "would never belong to anyone else."
Defendant related another incident which had occurred in late July, 1972. He saw his wife and George West in a car and told them to stop because he wanted to talk to his wife. Mrs. Jenkins got out of the car, and defendant asked her where she had been. When she replied that it was none of his business, he slapped her and she fell. West then started to get out of the car. Defendant threatened West with a motorcycle chain belt, and West got back into the car.
• 1 Defendant offered instructions on voluntary and involuntary manslaughter, which were refused by the trial court. The general rule is that in a murder trial it is error to refuse instructions on manslaughter if there is any evidence in the record which, if believed, would reduce the crime to the lesser offense (People v. Canada, 26 Ill.2d 491, 187 N.E.2d 243). The instruction should be given even though the theory of the defense at trial is inconsistent with the possibility that the defendant is guilty of the lesser offense. (People v. Scalisi, 324 Ill. 131, 154 N.E. 715). However, it is also well settled that where there is no evidence to support the lesser included offense, it is error to instruct the jury on it. People v. Handley, 51 Ill.2d 229, 282 N.E.2d 131.
Section 9-2 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 9-2(a)) defines voluntary ...