APPEAL from the Circuit Court of Du Page County; the Hon. L.L.
RECHENMACHER, Judge, presiding.
MR. PRESIDING JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
The defendant, Phillip L. Jacobs, was convicted by a jury for the murder of Jane Harding, his ex-fiance and sentenced to 45-65 years in prison.
Defendant has raised five issues for review in his brief and supplement thereto. The first issue raised is whether the trial court committed reversible error in failing to instruct the jury on the lesser included offense of voluntary manslaughter as the evidence showed the defendant was seriously provoked by the deceased; that the evidence showed the defendant lacked the requisite specific intent necessary to constitute murder; and lastly, that the trial court's refusal to give the voluntary manslaughter instruction and verdict form violated defendant's right to due process and equal protection. The other issues raised are, respectively, whether the defendant was deprived of a fair trial by allegedly improper remarks of the prosecutor in his closing argument; whether the trial court erred in sentencing the defendant without first obtaining a presentence report or additional background information as to the defendant; whether defendant's sentence should be reduced; and whether the defendant was improperly convicted of two counts of murder where there was but one killing.
• 1 The State concedes, and we agree, that the last contention is correct. We, therefore, find that the mittimus should be amended to show but one murder conviction.
On the evening of June 20, 1970, shortly before midnight, the defendant killed Jane Harding by stabbing her 42 times with a screwdriver. After the incident the defendant drove directly to the Naperville Police Department with the body and reported the crime. About 12 p.m. Officer Hoyer and Sergeant Rowe took the defendant into custody and read him the Miranda warnings. Detective Ley of the Du Page County sheriff's office testified that he saw the defendant at the Naperville police station that night for about 20 minutes. Defendant told Detective Ley said that he had taken a drug earlier that night, however, Detective Ley said that he noticed nothing unusual about the defendant, saying that defendant was "very quiet, but normal." At 3:10 a.m. defendant consented to allow Dr. Kupke to take a blood sample from him. That test indicated that the defendant had 0.075% alcohol in his blood but showed no trace of any drug.
The record reveals that the defendant and Jane Harding were engaged about a year before the homicide but recently they had not been dating regularly. Defendant testified that he was the one who terminated the relationship because of her immaturity. On June 21, 1970, Miss Harding was scheduled to attend summer school in Wisconsin. On June 20 she was spending the night with Ken and Carol Gurski, mutual friends of both Miss Harding and the defendant. That night the defendant stopped by the Gurski's house with several friends and defendant and Miss Harding had a disagreement. About 10:30 Miss Harding left the Gurski home with the defendant in a borrowed car. The Gurskis testified that, while Miss Harding had been drinking, she did not seem drunk. They further testified that the defendant was not intoxicated at that time. The defendant testified that while he had nothing to eat between noon and 11 p.m., that he had drunk two 6-packs of 12 oz. cans of beer, had smoked part of a marijuana cigarette and had drunk 7-8 pint cans of malt liquor in that order. He further testified that at about 11 p.m., when he and Miss Harding arrived at the deserted area near the railroad tracks where the killing took place, he drank a can of malt liquor and ate a double capsule of mescaline. The defendant then related his story that the deceased tried to make love to him and that he rejected her. She then made numerous attempts at suicide and argued with the defendant until he lost control of himself and stabbed her to death with the screwdriver.
At the trial defendant's counsel argued several theories of defense, including insanity and voluntary manslaughter. The trial judge refused to instruct the jury on voluntary manslaughter but did give an instruction on insanity. We consider first defendant's contention that the trial court erred in refusing to instruct the jury on the voluntary manslaughter and, therefore, the conviction should be reversed and remanded for a new trial or, alternatively, the conviction should be reduced to voluntary manslaughter as a matter of judicial economy. Defendant presents alternative theories in support of this contention. Defendant first argues that there was sufficient evidence of serious provocation by the deceased to warrant the giving of the voluntary manslaughter instruction and verdict form. Secondly, defendant argues that provocation is not the sole means by which the required specific mental intent for murder can be negated. Defendant argues that the evidence demonstrated that his voluntary intoxication, drugged condition and mental abnormality negated the requisite specific intent for murder, therefore, he was guilty of voluntary manslaughter, a general intent offense, and the jury should have been so instructed. We shall treat these arguments together.
• 2 The general rule is that in a murder trial, where there is any evidence in the record which, if believed by the jury, would reduce the crime to manslaughter, then it would be error to refuse to give such a tendered instruction. However, it is equally well settled that such an instruction should not be given if the evidence clearly demonstrated that the crime was murder and there is no evidence to support the conviction of manslaughter. People v. Handley (1972), 51 Ill.2d 229, 282 N.E.2d 131.
Section 9-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1969, ch. 38, par. 9-2) provides that a person killing an individual without justification "commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by: (1) The individual killed * * *. Serious provocation is conduct sufficient to excite an intense passion in a reasonable person."
"The only categories of serious provocation which have been recognized are: `substantial physical injury or assault, mutual quarrel or combat, illegal arrest, and adultery with the offender's spouse; but not mere words or gestures or trespass to property.'"
Defendant herein contends that there was substantial evidence of serious provocation by the victim and that this evidence was sufficient to constitute a "mutual quarrel" that would reduce the killing to voluntary manslaughter. The evidence of the alleged mutual quarrel, as testified to by the defendant, was that the victim attempted to seduce him; that he rejected her and that she then attempted to commit suicide, which he prevented. They quarreled about their relationship and all this seriously provoked him into killing her.
Conceding the veracity of defendant's testimony as to the events which led up to the killing, we fail to see that a quarrel about a relationship between the parties, an attempt at seduction by the woman, and the victim's alleged attempts at suicide could in any way result in such "serious provocation" that would engender intense passion in a reasonable man. The trial court found that defendant's evidence, even if believed, would not warrant the jury to find defendant guilty of voluntary manslaughter. We concur in that determination and find that the refusal of the tendered voluntary manslaughter instruction was proper. People v. Handley (1972), 51 Ill.2d 229, 282 N.E.2d 131.
We next consider defendant's further contention that the evidence of his alleged voluntary intoxication, drugged condition and mental abnormality negated the requisite specific intent to constitute murder. In People v. Gonzales (1968), 40 Ill.2d 233, 241, 239 N.E.2d 783, 789, our supreme court was faced with the same question we have before us. There the court said:
"The defendant contends there was sufficient evidence in the record from which the jury could have found him to have been so intoxicated on the night of the shooting as to suspend his power of reason and that, therefore, the trial court should not have refused to give an instruction on manslaughter. In order to raise the defense of drunkenness as a defense to a crime requiring intent, the accused must show that this drunkenness existed to such a degree as to render the accused wholly incapable of forming such intent."
But, the court went on to say:
"Furthermore, the coherent and detailed nature of the statements themselves clearly indicate that the defendant had a cognizance of the events immediately prior to the shooting which belies any arguments that his power of reasoning had been suspended. [Citation.] We believe that the evidence clearly demonstrates that the killing was a murder, and that consequently no error was committed by the trial court's refusal to give an instruction on manslaughter." (40 Ill.2d 233, 242, 239 N.E.2d 783, 789.)
In the case before us the defendant recalled in detail the alleged amount of beer, malt liquor and drugs that he allegedly consumed prior to the killing, and here as in Gonzales he further recalled all the events and incidents in detail leading up to the killing. Finally, as pointed out in People v. Aguirre (1975), 30 Ill. App.3d 854, 857, 334 N.E.2d 123, 126, the State can rebut the defendant's evidence of ...