APPEAL from the Circuit Court of Williamson County; the Hon.
WILLIAM A. LEWIS, Judge, presiding.
MR. PRESIDING JUSTICE CARTER DELIVERED THE OPINION OF THE COURT:
George Farmer, defendant, appeals from a judgment of the Circuit Court of Williamson County rendered in a jury trial finding defendant guilty of murder. The defendant was sentenced to a term of from 20 to 60 years.
Defendant presents numerous issues for review, some of which require us to reverse his conviction and order a new trial. The issues are as follows: whether the trial court erred in refusing to instruct the jury as to the lesser included offense of involuntary manslaughter; whether the trial court erred in giving an instruction on "transferred intent"; whether the jury should have been submitted the issue of defendant's sanity; whether the court should have admitted into evidence a photograph of the deceased's head; whether the defendant was prejudiced by remarks made by the State in its closing argument; whether defendant's statements made to his brother before his arrest should have been admitted; whether the sentence was excessive; and whether a statement made by a juror in front of several other jurors requires a new trial.
The incident on which the conviction was based occurred just outside the defendant's home in Johnston City. The only evidence regarding what actually transpired when Charles Darter was shot was defendant's account of the incident. Defendant's testimony regarding the shooting was as follows: defendant's daughter had gone out the night before and had failed to return home; defendant was worried about the whereabouts of his daughter the day of the shooting; he had been cleaning his gun when he heard a car honk in front of his house; he then stuck the gun in his belt and walked out to the car; after opening the front door of the car he sat on the front seat; defendant did not know the young man driving the car; the young man told defendant that he had taken his daughter to the Town of Energy the night before; the father then asked the young man to go and bring his daughter home and the young man replied that he would not; in an attempt to coerce or frighten the young man into bringing his daughter home, the father pulled his gun, pointed it at the boy and pulled back on the hammer; defendant had previously testified that the revolver was defective in that the safety catch did not work; he testified that the gun was oily as a result of just having cleaned it. Finally, defendant testified that the hammer "slipped off of my hand, and the gun went off." Darter, the young man, died from the gunshot wound.
• 1 The importance of defendant's rendition lies in the fact that the discharge of the gun resulted from a slip, an unintentional act on defendant's part. The forces actually causing death were set in motion unintentionally. According to defendant's testimony, the only intent behind defendant's actions was to scare the boy. This is simply not the sort of intent required to support a conviction for murder; however, this would be sufficient to support a manslaughter conviction and failure to instruct the jury on manslaughter when requested by the defendant and refused by the trial court requires a new trial. This testimony of defendant, if believed by the jury would be sufficient to reduce the charge to manslaughter and hence, the defendant was entitled to an instruction on manslaughter.
The Supreme Court of Illinois has addressed itself to the problems of distinguishing between murder and manslaughter. In the case of People v. Davis, 35 Ill.2d 55, 60-61, 219 N.E.2d 468, the court held:
"The common-law distinctions between murder and manslaughter have always involved considerations of degree [citation] and similar considerations appear in the Code definitions. * * *
Where, as here, the evidence is conflicting, it is for the jury to decide under proper instructions whether a homicide was murder or manslaughter, or whether it was justified as self-defense."
Where the evidence on an issue is legally sufficient and is in conflict or more than one inference may reasonably be drawn therefrom, the question is for the jury. It is the province of the jury to decide whether the accused is guilty of manslaughter or murder if there is any evidence which tends to prove the lesser crime. 21 Ill. L. & Prac. Homicide § 132 (1956); People v. Ryan, 9 Ill.2d 467, 138 N.E.2d 516, 521; People v. Dortch, 20 Ill. App.3d 911, 314 N.E.2d 324.
In People v. Peery, 11 Ill. App.3d 730, 297 N.E.2d 643, defendant was convicted of stabbing his wife. Defendant and his wife were arguing. Defendant testified that he had no memory of stabbing his wife but he did remember that she threatened to kill him and that she reached into the sink and struck defendant on the head with a heavy object. Defendant was denied a manslaughter instruction. In that case the court held:
"Even though the evidence was conflicting, the defendant's trial testimony, if believed by the jury, was sufficient to create an issue of fact * * *.
* * * it is the province of the jury, and not the judge, to determine the guilt or innocence of the accused and also to determine whether the accused is guilty of murder or the lesser crime of manslaughter, `if there is any evidence which tends to prove the lesser rather than the greater crime.' [Citation.]
The province of the jury to determine the weight to be given the testimony of the various witnesses was definitely invaded by the refusal of the court to give the manslaughter instruction offered by the defendant." 11 Ill. App.3d 730, 734.
In People v. Kelly, 24 Ill. App.3d 1018, 332 N.E.2d 521, the defendant testified that his intention was to fire a warning shot in the direction of the victim and not to hit him. However, the defendant stated that the gun was pointed in victim's direction when the accused fired the ...