APPEAL from the Circuit Court of Peoria County; the Hon. JAMES
D. HEIPLE, Judge, presiding.
MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 2, 1979.
Following a jury trial in the Circuit Court of Peoria County defendant was convicted of rape and murder and sentenced to two 50-to 75-year prison terms to be served concurrently.
On the afternoon of April 28, 1976, Peoria police responded to defendant's call seeking an ambulance, and upon arriving at the apartment of defendant's ex-wife, found the woman dead lying on the bed in the arms of the sobbing defendant. Initially defendant told the police he had found the decedent already dead, but the next day he gave a statement detailing his involvement in her death.
About six months before her death, while married to defendant, the victim began having an affair with one of her co-workers, Leon Lowe. The victim divorced defendant 1 1/2 months prior to her death, and she was given custody of the couple's young child.
According to defendant's statement, concern about his baby prompted him to start looking for his ex-wife early on the morning of April 28. Being unable to locate her, defendant went to the victim's apartment at about 1:30 p.m. and let himself in with a key. While waiting for his ex-wife, defendant got out an axe handle which he said he used to scare her. When he heard the victim arriving defendant hid in a closet. While in the closet defendant heard the victim place a call to Lowe in which she said defendant was dumb and stupid. Defendant claims to have been upset by these statements and when the victim started swearing at the baby he came out of the closet, picked up the axe handle, unplugged the phone and pulled her towards him.
According to defendant he and his ex-wife then had a "normal conversation" for about 15 minutes, until she refused to change the baby's dirty diaper. A quarrel ensued in which the victim asked defendant to leave and pushed him several times while holding the baby in her arms. Defendant responded by hitting the victim on the side of the head with a vase filled with pennies. The woman dropped the baby, but continued attacking defendant, hitting him, biting him on the chest and tearing his shirt. Defendant claims he tried to fight her off, but he was unsuccessful until he pinned her up against the wall by placing his forearm on her neck. The victim lost consciousness and fell to the floor knocking a lamp off an end table. Defendant had intercourse with her while she was lying unconscious on the floor. He then placed her on the bed, straightened up the apartment, asked several neighbors if they had seen her and, after several attempts to revive her, he called an ambulance.
1 At the instruction conference defense counsel requested instructions on voluntary and involuntary manslaughter, and these were denied.
Defendant contends that the court erred in refusing to give the requested instructions. It is well settled that if there is evidence in the record which, if believed by a jury, would reduce the crime to manslaughter, a manslaughter instruction tendered by defendant must be given. (People v. Canada (1962), 26 Ill.2d 491, 187 N.E.2d 243; People v. Harris (1956), 8 Ill.2d 431, 134 N.E.2d 315.) It is equally well settled however, that such an instruction should not be given if the evidence clearly demonstrates that the crime was murder and there is no evidence to support a conviction of manslaughter. People v. Handley (1972), 51 Ill.2d 229, 282 N.E.2d 131; People v. Latimer (1966), 35 Ill.2d 178, 220 N.E.2d 314; People v. Marsh (1949), 403 Ill. 81, 85 N.E.2d 715; People v. DeRosa (1941), 378 Ill. 557, 39 N.E.2d 1.
Section 9-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 9-2) defines voluntary manslaughter as follows:
"(a) A person who kills an individual without lawful 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, or
(2) Another whom the offender endeavors to kill, but he negligently or accidentally causes the ...