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People v. Jenkins

OPINION FILED NOVEMBER 4, 1976.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

BILLY JENKINS, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. PHILIP FLEISCHMAN, Judge, presiding.

MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT:

Billy Jenkins was indicted for shooting William Johnson. A jury found him guilty of attempt murder and he was sentenced to the penitentiary for a term of four to six years. His principal contention on review is that reversible error was committed in instructing the jury. The jury also convicted him on two charges of aggravated battery and subordinate contentions concern the sentences imposed upon him for these offenses. The charges arose from the shooting of Johnson, and the State concedes that the aggravated battery convictions and sentences must be reversed.

Johnson was shot after he attempted to break up a fight between his sister and Jenkins' sister on a street on Chicago's south side. The central issue at the trial was whether Jenkins shot Johnson in self-defense. Jenkins contended that Johnson reached into his waistband to pull out a pistol. Johnson denied having a gun on his person and testified that Jenkins and a man named Milton Mastin attacked him after he walked away from the two quarreling women. For further details see People v. Mastin (1976), 41 Ill. App.3d 812, 354 N.E.2d 540.

The court instructed the jury that Jenkins was presumed to be innocent and that the State had the burden of proving him guilty beyond a reasonable doubt. The jurors were also told that the law applicable to the case was contained in the instructions, that it was their duty to follow all of them and that they should not single out certain ones and disregard others. The controversial instructions followed in this sequence:

[*] "A person commits the crime of murder who kills an individual if in performing the act which caused the death he intended to kill or to create great bodily harm to that individual or he knows that such act will cause death to that individual or he knows that such act creates a strong probability of death or great bodily harm to that individual.

A person commits the crime of attempt who with intent to commit the crime of murder does any act which constitutes a substantial step towards the commission of the crime of murder.

The crime attempted need not have been committed, to sustain the charge of attempt the State must prove the following propositions: first that the defendant performed an act which constituted a substantial step towards the commission of the crime of murder and second that the defendant did so with intent to commit the crime of murder.

If you ladies and gentlemen find from your consideration of all of the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty. And if, on the other hand, if you find from your consideration of all of the evidence that any of these propositions have not been proved beyond a reasonable doubt, you should find the defendant not guilty."

[**] "A person is justified in the use of force when and to the extent that he reasonably believed that such conduct is necessary to defend himself against the imminent use of unlawful force.

However, a person is justified in the use of force — which is intended or likely to cause death or great bodily harm only if he reasonably believed that such force is necessary to prevent imminent death or great bodily harm to himself.

To prove the charge of attempted murder, the State must prove the following: proposition first, that the defendant performed an act which constitutes a substantial step towards actually committing the crime of murder and second, that the defendant did so with intent to commit the crime of murder. And third, that the defendant was not justified in using the force which he used.

Again, if you find, from your consideration of all of the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.

And if, on the other hand, you find, from your consideration of all of the evidence, any of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty."

The instruction with one asterisk was submitted by the State; the instruction with two by the defendant. The difference between the two, which is of chief concern here, is that the State's does not mention the defense of justifiable use of force and the defendant's emphasizes it. The defendant argues ...


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