APPEAL from the Circuit Court of Cook County; the Hon.
BENJAMIN MACKOFF, Judge, presiding.
MR. JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 7, 1976.
The defendant, Major Peery, was convicted of murdering his wife, Lovelle Peery, on March 31, 1971, and after a jury trial in the Circuit Court of Cook County, he was found guilty of murder. That judgment was reversed on appeal (People v. Peery (1973), 11 Ill. App.3d 730) because the trial court erroneously refused to instruct the jury on the lesser included offense of voluntary manslaughter. Upon remand to the trial court, the defendant was again found guilty of murder by a jury, and he was sentenced to a term of 30 to 90 years.
The issues on appeal are whether the court erred by failing to give the tendered jury instruction on voluntary manslaughter based on serious provocation and sudden and intense passion, even though the court instructed the jury with reference to voluntary manslaughter based on an unreasonable belief that circumstance existed which would justify the killing; whether it was error to permit the State to cross-examine the defendant concerning his unwillingness to support his family and to introduce rebuttal testimony on the same matter; and whether it was error to permit the State to introduce into evidence the fact that the defendant had previously been convicted of attempted murder.
At retrial the evidence indicated Peery had been married for 18 years to Lovelle Peery, but had separated and lived apart from her for about six weeks prior to March 31, 1971, when the killing took place. Mrs. Peery and three of her children were living with her son by a previous marriage at 5544 South Laflin in Chicago. Major Peery lived with his daughter, Patricia Peery Walker, at 5656 South Justine.
At about 8 p.m. on March 31, 1971, Lovelle Peery was at the apartment of her daughter and son-in-law, Gail and Timothy Jackson, located at 5604 South Laflin in Chicago. Patricia testified she had been there and talked to her mother about whether her sister, Margaret, could come to live with her, but she was denied permission. Upon returning to 5656 South Justine, she met her father coming out of the house. She told him her mother had refused permission, and the defendant said he was going to get Margaret. Patricia accompanied her father to the Jackson apartment, and upon arriving she saw him open a knife he was carrying in his pocket.
Gail Jackson testified that when she answered the bell she could only see Patricia standing at the door, and upon opening the door, the defendant rushed into the apartment.
The defendant engaged in an argument with his wife and accused her of keeping his children from him and of keeping company with other men. Lovelle Peery denied both accusations. During the argument she was standing about two feet from the sink in the kitchen and Major Peery was standing opposite his wife across the room. The four Peery children and Timothy Jackson, who were all present, testified that after several minutes of argument Major said, "What are you going to the sink for?" He then rushed toward his wife, grabbed her around the neck with one hand and began stabbing her with the other. At trial he testified he was 7 1/2 inches taller and 80 pounds heavier than his wife.
The children testified Lovelle Peery had made no move toward the sink and had nothing in her hands when she was attacked. In an effort to stop the attack Patricia hit her father repeatedly on the head with a large spoon and Gail Jackson hit him on the head with a metal chair.
The police were summoned, and Officer Patrick Duignan testified he asked the defendant what happened, and the defendant said, "I stabbed my wife."
The defendant testified he had gone to the apartment out of concern for his children. He said he rushed across the room toward his wife when she said to him, "Anyway, I made up my mind to kill you." When she went to the sink he thought she was going to do him some harm because she had threatened him. He remembered seeing nothing in her hands, but he testified she struck him in the head with a heavy object and he did not remember the stabbing. The Peery children and son-in-law all testified that Lovelle did not threaten her husband's life.
In the original trial the defendant tendered, and the court refused, instructions on self-defense and both IPI instructions on voluntary manslaughter (Illinois Pattern Jury Instruction, Criminal, Nos. 7.03 and 7.05). These instructions provide:
7.03 Voluntary Manslaughter Provocation
A person commits the crime of voluntary manslaughter who kills an individual if, at the time of the killing, he acts under a sudden and intense passion resulting from serious provocation by the deceased. Serious provocation is conduct ...