APPEAL from the Circuit Court of Marshall County; the Hon.
ALBERT PUCCI, Judge, presiding.
MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
Defendant was indicted and tried by a jury for the offenses of murder, voluntary manslaughter, aggravated battery and involuntary manslaughter. He was found guilty of involuntary manslaughter and was acquitted of the other charges. He appeals his conviction and the sentence to the Department of Corrections for a minimum term of 3 years and a maximum term of 9 years.
The record discloses that Albert Thompson was fatally shot by defendant in Thompson's modified mobile home located north of Chillicothe, on June 22, 1974, at approximately 9:15 p.m. Defendant, who was about 57 years old at the time, and his wife, Virginia, had been friends of Albert and Ruby Thompson for 8 months to a year prior to the shooting. Albert Thompson was 64 years of age at the time of his death.
On the day of the shooting the Singletons had arrived at the Thompson trailer by invitation about noon with a six-pack of beer. The four persons drank beer and socialized for part of the afternoon and then took a drive through the country to see some other friends. While they were at a farm, where some ponies given by defendant to Thompson were kept, the two men began arguing about the ponies, and Thompson said, "You could get killed for that." Shortly thereafter they drove back to the trailer and defendant refused to come in for some time, until Thompson told him to "forget it." Defendant went in, a short time later, however, Thompson suddenly brought up the ponies issue again and produced a knife. There is conflict in the evidence from this point.
Defendant testified that Thompson got up from the couch 2 or 3 feet away and was angry and had the blade of his pocket knife open and said, "I'm going to cut your damn head off," and started at him with the knife. Defendant said he jumped up and pushed his chair back and pleaded with Thompson to put the knife away. He claimed that he threw up his right hand to divert a blow and got cut on his thumb, and that Thompson still came at him and nicked him on the forehead and neck, and knocked his glasses off. Defendant said that he then kicked Thompson, pushed him into a bedroom, and then left the house and went to his car intending to find an extra pair of glasses there, and to go for help. He also testified that while he was outside, he heard the women scream and that fearing for their safety, he picked up his .22 pistol from under the front seat of his automobile and reentered the house.
Mrs. Thompson testified that she was in the kitchen when she heard her husband suddenly tell defendant to leave. She looked over and saw that her husband was still seated on the couch with his pocketknife partly opened. He could have been cleaning his fingernails with the knife, according to her testimony, because she saw no attempt on his part to injure defendant. She did see defendant leave and assumed he had gone home leaving his wife. Mrs. Thompson stated that when defendant returned to the trailer home with a gun, that her husband retreated to the bedroom and that defendant followed him saying, "You sonofabitch, now I would like to see you cut my throat." Then she heard shots fired in the bedroom. By this time she was on the telephone calling for help, and next saw defendant walk out of the bedroom covered with blood. She stated that she did not know whether the blood she saw was from wounds received by defendant or whether it was from decedent. According to her testimony, defendant said he "was going to have to go to the hospital" and that she told him he was going no place until the police and ambulance could come. She stated that defendant nonetheless walked outside and then came back in saying "I don't own a gun." She also testified that her husband had a reputation for being a nice kind man.
Defendant's version of what occurred when he returned with the gun varied considerably from the testimony of Mrs. Thompson. According to him when he reentered the house, Thompson was standing by the kitchen door and said to him "I'll kill you," and came after him with the knife. Defendant stated that he hit Thompson on the head with the gun and that because of the blood on his hand, the gun slipped loose and fell to the floor. Thompson dropped to the floor for the gun and defendant dropped down on him pinning down Thompson's hand with the knife in it while trying with his free hand to outreach Thompson for the gun. Thompson then pulled his hand with the knife in it through defendant's hand cutting defendant's fingers. They scuffled on the floor into the bedroom where Thompson, having freed his hand with the knife, gouged defendant in the back, hip and stomach. The knife got loose again, and defendant was bleeding; feeling fear and danger, defendant pulled the trigger and saw Thompson go limp. As he came out of the bedroom door, defendant said he saw Mrs. Thompson, told her to call for help and took his gun to the doorway where he pitched it into a field. It was later found by police about 50 feet away. Defendant admitted having told the police that he did not own a gun, but stipulated during trial that the gun found was his.
Mrs. Singleton testified for her husband, but being a victim of glaucoma who could not see well, her testimony was limited to having seen Thompson get up from the couch and cut her husband. She did not see her husband leave the residence, or return with a gun, but she did admit seeing Thompson head for the bedroom and her husband following him trying to get the knife, and she heard one shot.
Several police officers and the sheriff testified to having taken a statement from Mrs. Thompson and Mrs. Singleton during the investigation on the night of the incident. The women were interviewed jointly and both signed. The officers stated that whether any part of the statement was verbalized by Mrs. Thompson or Mrs. Singleton, neither contradicted the other. The sheriff said, however, that he heard Mrs. Thompson say decedent and defendant got into an argument and that decedent pulled a knife and started cutting on defendant and told him to leave the trailer. Trooper Gary Booth corroborates this version, and Trooper Gene Kizer had reduced the womens' statement to writing, and testified that both ladies signed it. All investigating officers testified they found blood on the right hand outside from door of defendant's car, on the steering wheel, on the front floor, and a smear on the front seat. It also appears clear from police testimony that when Mrs. Thompson reported the incident by telephone, she reported a shooting and a stabbing. There was considerable evidence of defendant's good reputation in the community for being a law abiding peaceful citizen.
The court denied all offers of proof by defendant that decedent had brutally beaten and injured Mrs. Thompson, an invalid, within 2 months of this incident, and that Mrs. Thompson, relating her fear of her husband, would not go to a hospital until defendant persuaded her to; that after hospitalization, defendant had brought her home with police protection, and that Thompson had later threatened to kill defendant with a hammer for having done so. The court also denied an offer of proof through a neighbor of Thompson's, one John Thurman, that decedent was volatile and had made threats on members of his family. The court also denied defendant's offer of proof that he was aware of all the foregoing incidents, and as to decedent's previous criminal conviction for murder, at the time he reentered the trailer with his pistol thinking the women were in danger.
• 1 We believe that the testimony tendered with respect to threats and actions of Thompson and defendant's knowledge of Thompson's previous conviction for murder, were not in fact too remote in time to be relevant and admissible. Many of these events were within 2 or 3 months of the actual shooting. Testimony of events more remote in time have been admitted in other cases. (People v. Stepheny, 46 Ill.2d 153, 263 N.E.2d 83 (1970); People v. Adams, 25 Ill.2d 568, 185 N.E.2d 676 (1962).) A defendant claiming self-defense in response to homicide charges may show specific acts of violence and threats by the deceased (People v. Adams, 25 Ill.2d 568, 572, 185 N.E.2d 676 (1962); McCormick on Evidence § 193, at 461-62 (2d ed. 1972)), and should be allowed substantial latitude in making such showing. (People v. Stombaugh, 52 Ill.2d 130, 139, 284 N.E.2d 640 (1972).) The inclusion of the testimony referred to would tend to show justification for defendant's return to the trailer in coming to the defense of his wife and Mrs. Thompson (Ill. Rev. Stat. 1973, ch. 38, par. 7-1), and the exclusion of such proof was prejudicial.
If, as the circuit court apparently concluded there was sufficient evidence to warrant an instruction on involuntary manslaughter, we are also persuaded that reversible error occurred in giving Illinois Pattern Jury Instruction Criminal No. 7.08 (hereinafter IPI Criminal) without including therein, as one of the issues which the State must prove beyond reasonable doubt, the fact that the killing was without legal justification. That issue was included in the issues instructions on each of the other charges of which defendant was acquitted. Self-defense is applicable to the charge of involuntary manslaughter. (People v. Hunter, 365 Ill. 618, 624, 7 N.E.2d 444 (1937)), and the failure of the court to so instruct was prejudicial and misleading.
• 2 The foregoing errors, standing alone, would require remandment for a new trial on the involuntary manslaughter charge. In support of an argument for outright reversal, however, defendant contends that there is no evidence in this record to show the mental state of recklessness, which is an essential element of the charge of involuntary manslaughter of which he was convicted. Accordingly, he argues that IPI Criminal No. 7.08 should not have been given in any event because the testimony presented, in any manner it may be interpreted, shows an intentional killing, i.e., either murder or voluntary manslaughter or justifiable self-defense, and that there is nothing in the record, even considering only what was admitted, which suggests recklessness. We are persuaded that this argument is correct, and that the rule announced in People v. Hall, 118 Ill. App.2d 160, 254 N.E.2d 793 (1st Dist. 1969), is applicable by analogy. Under the version of facts testified to by Mrs. Thompson, defendant without any justifiable provocation left the house, returned with a gun and followed the retreating decedent to the bedroom where he shot him. Under defendant's version, after having retreated from the scene of personal danger, he deliberately returned with a gun to protect the women, including his wife who had remained there, from an apparently imminent threat of harm. We believe that reversible error was made in submitting an instruction on involuntary manslaughter, and that the conviction on this charge must be set aside. In view of that determination, it is unnecessary to consider other alleged errors.
Accordingly, the judgment of conviction entered by the circuit court on the charge of involuntary manslaughter, and the sentence imposed, is reversed, and the cause is ...