APPEAL from the Circuit Court of Cook County; the Hon. SAUL A.
EPTON, Judge, presiding.
MR. PRESIDING JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:
The defendant, Ramon Cruz, was charged with the murder (Ill. Rev. Stat. 1975, ch. 38, par. 9-1) of Julio Reyes. He was found guilty of the lesser included offense of voluntary manslaughter (Ill. Rev. Stat. 1975, ch. 38, par. 9-2), and not guilty of attempt murder of Officer Ronald Nally. Cruz was sentenced to the Department of Corrections for not less than two and not more than six years. The defendant contends that the court erred in failing to instruct the jury on the law of self-defense and also erred in denying the defendant's motion to dismiss the murder indictments where the grand jury transcript of proceedings shows that the only true bill returned was that of attempt murder and where the murder bill of indictment was not signed by the grand jury foreman.
Officer Ronald Nally testified that after completing his shift at 2:30 a.m. he left the district station in uniform in his own vehicle and proceeded home. Travelling on Clark Street, Officer Nally noticed four men arguing in front of the Los Latinos Tavern at the corner of Clark and Argyle. He testified that the defendant had a gun in his right hand. As the officer made a U-turn, the four men proceeded to cross Argyle. Both Julio Reyes, the decedent, and Nertheline Reyes, his brother, were walking backwards, but Nertheline was directly in front of the decedent and had his hand on the defendant's chest. Eddie Echevarria was walking immediately behind the defendant. The defendant pushed Nertheline Reyes aside and shot Julio Reyes twice.
Nally was 30 feet from the men at the time of the shooting. As the defendant proceeded back to the corner, Nally left his automobile and positioned himself near its front left wheels so that the vehicle was between the defendant and himself. At that time he stated: "Police officer. Drop the gun." Nally dropped behind his vehicle with his head exposed and saw the defendant's hand jerk, but the gun did not fire. As he repeated "drop the gun," the defendant tossed the gun onto some grass. The officer directed the defendant to lie face down on the sidewalk and the defendant complied. Nally retrieved the gun. Nally also testified that there was a struggle going on between the defendant, the decedent and Nertheline Reyes at the time he saw and heard the two shots fired.
Nertheline Reyes testified that he saw Echevarria get a gun from a vacant lot next to the tavern. As Echevarria approached Julio with the gun, Nertheline grabbed Echevarria and told Echevarria to give the gun to him. Echevarria gave Nertheline the gun and stated he did not want Nertheline to use it on anybody. As Nertheline was about to throw the gun on a roof the defendant came along, grabbed him by the neck and took the gun away. At that time Julio was standing on the corner. As Nertheline saw the defendant going toward Julio, Nertheline got between them.
Nertheline further testified that the defendant fired two shots in the ground. Nertheline and the decedent were retreating north across Argyle when the defendant pushed Nertheline and shot the decedent twice.
The defendant called as a witness Sonia Rivera, the manager of the Los Latinos. She testified that the decedent and his brother arrived at the tavern about 4:30 or 5 o'clock in the afternoon. She had known the Reyes brothers for about eight years. During the evening the decedent went to the defendant's table and told the defendant to leave Sonia alone because she was the decedent's girl.
Rivera was the last person to leave the tavern that night. She saw Nertheline Reyes outside of the tavern with a gun tucked inside his pants and the handle showing. Nertheline told the defendant to come toward him and that if he wanted the gun to come and get it. The defendant said that he did not want any trouble and that all he wanted to do was to go home. Rivera turned and locked the door of the tavern and when she turned back Nertheline was pointing the gun at the defendant. The decedent was two feet away from the defendant. The defendant kept backing up and Nertheline called out to the decedent to "get on the other side!" At this time Rivera came off the steps of the tavern and turned around. She saw that the defendant had hold of Nertheline's wrist and that the decedent had hold of the defendant's wrist. Nertheline had the gun and the defendant took it out of his hands and threw it. All three of the men ran for the gun. They started struggling and Rivera saw one shot go into the air and one into the ground. The defendant reached the gun first. Rivera walked across the street to her car. She heard two shots as she got into her car, but did not realize anyone had been hit by the gunfire. On cross-examination Rivera testified that Nertheline told the defendant "I'm going to kill you, I don't like you." She was asked what the defendant did to start the struggle and replied that "he put his hands on Nertheline's wrist." Both Nertheline and the decedent had a hand on the defendant when the shots went off.
Eddie Echevarria testified that immediately after leaving the tavern Netherline put the gun to the chest of the defendant. The defendant grabbed the arm of Nertheline and the victim intervened.
The defendant testified that he joined Echevarria and another person for a drink when he arrived at the bar. While there, he noticed that the Reyes brothers were angry at him. The decedent told the defendant that Sonia Rivera was his girlfriend and that the defendant should leave her alone. The defendant was surprised when he first saw the gun in the hands of Nertheline outside of the bar. Nertheline was pointing the gun at him and told the defendant that "he was going to kill me and saying obscene things." The Reyes brothers were coming toward the defendant when he started to walk backwards toward the corner. The defendant stated he was trying to make peace in telling them that he did not want to fight. He felt that they were going to try to kill him and he tried to avoid this by grabbing the hand with which Nertheline held the gun. He was able to get the gun and he threw it several feet away. When the Reyes brothers ran to retrieve it, the defendant tried to get to it before they did. The defendant got the gun again and a struggle ensued with both brothers on top of him. During the struggle the gun went off. About a second later, as the struggle continued two more shots went off and the decedent was struck. The defendant then walked across to the bar. About eight or 10 minutes later the police arrived and the officer said that he should throw the gun down. The defendant let go of the gun.
The defendant argues his tendered instruction on self-defense should have been submitted to the jury. He contends that the jury should be instructed on any defense which has some foundation in the evidence, and that this is true even if the facts on which the defense is based are inconsistent with the defendant's own testimony. The People argue that the jury was instructed correctly because no evidence of self-defense was presented at the trial.
1 In People v. Looney (1977), 46 Ill. App.3d 404, 410, 361 N.E.2d 18, 22, the court noted "[a] defendant in a criminal case is entitled to have the jury instructed on any legally recognized defense theory which has some foundation in the evidence, however tenuous." (See also People v. Kalpak (1957), 10 Ill.2d 411, 140 N.E.2d 726.) Furthermore, whether the asserted defense is based upon testimony of the State's witnesses, or those of the defendant is irrelevant. People v. Gajda (1967), 87 Ill. App.2d 316, 232 N.E.2d 49; People v. Hill (1977), 53 Ill. App.3d 280, 368 N.E.2d 714.
The fact that the defendant may have denied any intention to commit the act is also irrelevant. (People v. Craven (1973), 54 Ill.2d 419, 299 N.E.2d 1.) And the courts> have indicated that it is perfectly proper to charge the jury with inconsistent defenses so long as the facts and nature of the case support the ...