APPEAL from the Circuit Court of Sangamon County; the Hon.
HOWARD LEE WHITE, Judge, presiding.
MR. JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
This case comes to us on remandment from the supreme court to consider issues raised but not reached in our original opinion.
The cause was tried in the circuit court of Sangamon County with a jury verdict of guilty of murder reached on April 2, 1973. It was then appealed to this court which reversed and remanded. (People v. Simpson (1976), 39 Ill. App.3d 661, 350 N.E.2d 517.) It was then further appealed to the supreme court which reversed this court and remanded to us. People v. Simpson (1977), 68 Ill.2d 276, 369 N.E.2d 1248.
The facts are fully set forth in our prior opinion and will not be reiterated here except as may be necessary for clarity. The prior appeal raised four issues which disposition and status is as follows:
(1) Error by the trial court in the admission of testimony by the defendant's wife concerning the surrounding circumstances of a conversation with him on the morning following the homicide. This court held that it was not error and the supreme court made no reference to it in its opinion. We therefore consider that matter closed.
(2) Error by the trial court in the admission of testimony of an assistant State's Attorney concerning a statement made by the defendant to his wife during a confrontation between them while the defendant was being interrogated by the authorities. This court held that to be error and the supreme court reversed this court. We likewise consider that matter now closed.
(3) Error by the trial court in refusing jury instructions and verdict forms on the lesser included offenses of voluntary manslaughter and involuntary manslaughter. This was not reached in our prior opinion for the reason set forth therein and is now before us pursuant to the supreme court's mandate.
(4) Excessiveness of sentence which was likewise not reached in our prior opinion and is now before us under the supreme court's mandate.
Before proceeding to the principal issues involved in this phase of the case, we should dispose of one detail yet unresolved in issue No. 2. It had been argued by defendant that if the statement were admissible, it went only to his credibility and he was entitled to a limiting instruction to that effect. We believe that the opinion of the supreme court disposes of this:
"We deem it clear that Kasten's [assistant State's Attorney] report of the wife's police station statement was admissible to explain the bare words of defendant's public admission, `Yes.' Her statement gave meaning to the defendant's otherwise incomprehensible statement above, and merely revealed what the defendant thereby admitted to having said." (Simpson, 68 Ill.2d 276, 282, 369 N.E.2d 1248, 1252.)
The supreme court has thus characterized defendant's statement as an admission. The jury received instruction on admissions and the weight to be given to them and therefore no further instruction was needed or proper.
We turn next to the more difficult and troublesome issue of the instructions. Defendant was indicted and tried on five counts of murder and two counts of voluntary manslaughter. At the close of all of the evidence, which was in reality the close of the People's evidence since the defendant did not testify nor present any other evidence, the People moved to dismiss the manslaughter counts. Defendant objected but was overruled and the counts dismissed. At the instruction conference defense counsel requested instructions on both voluntary and involuntary manslaughter and these were denied. The jury was instructed on murder only and returned a guilty verdict as above described.
Defendant's theory is that, even admitting the shooting as he did, there was no direct evidence of what transpired at the time of it and immediately beforehand; that there was testimony of a gash on his nose and abrasions on his knuckles, all of which looked fresh within a few hours after the event; that the autopsy surgeon testified as to wounds and abrasions on the body of the victim, "the majority" of which occurred after death; that there was testimony of a quarrel, or quarrels, between him and the victim earlier in the evening; that the gash on his nose was not observed by a witness who saw him prior to the homicide earlier in the evening. Defendant's argument then is that the evidence is just as consonant with a violent quarrel at the time of the shooting, and hence manslaughter, as it is with a deliberate killing, which is murder, and therefore he was entitled to instructions on the lesser included offenses. We do not agree.
• 1 The governing rule, like many rules of law, is simple and succinct of statement, but complex and ramified in its application. Reduced to a few words, it may be stated as follows: If there be some evidence in the record which, if believed by a jury, would reduce the crime to a lesser included offense, the defendant has a right to an instruction and form of verdict defining the lesser included offense. People v. Joyner (1972), 50 Ill.2d 302, 306, 278 N.E.2d 756; ...