Appeal from the Appellate Court for the Fourth District; heard
in that court on appeal from the Circuit Court of Sangamon
County, the Hon. Howard Lee White, Judge, presiding.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 25, 1979.
Defendant was convicted of murder in April 1973 after a jury trial in the circuit court of Sangamon County and sentenced to 25 to 75 years imprisonment. The appellate court reversed and remanded (39 Ill. App.3d 661), but this court reversed the decision of the appellate court and remanded to that court for determination of issues raised but not reached in its original disposition of the case (68 Ill.2d 276). Upon remand the appellate court affirmed defendant's conviction and sentence (57 Ill. App.3d 442). We granted defendant's petition for leave to appeal under our Rule 315 (65 Ill.2d R. 315).
Two issues are raised in the instant appeal: Whether the trial court erred in refusing to instruct the jury on the lesser included offenses of voluntary and involuntary manslaughter and whether the trial court properly refused special limiting instructions concerning defendant's admission, in addition to the general admissions instruction.
Defendant was charged with the murder of his paramour. He presented no evidence but argues that evidence contained in the State's case was sufficient to justify jury instructions on both voluntary and involuntary manslaughter.
Voluntary manslaughter is an unjustified killing committed while under a sudden and intense passion resulting from serious provocation; serious provocation is conduct sufficient to excite an intense passion in a reasonable person (Ill. Rev. Stat. 1977, ch. 38, par. 9-2). "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 the defendant must be given. (People v. Canada (1962), 26 Ill.2d 491; People v. Harris (1956), 8 Ill.2d 431; People v. Brown (1953), 415 Ill. 23)." (People v. Handley (1972), 51 Ill.2d 229, 235; accord, People v. Craven (1973), 54 Ill.2d 419, 425; People v. Joyner (1972), 50 Ill.2d 302, 306; Stevenson v. United States (1896), 162 U.S. 313, 314, 40 L.Ed. 980, 981, 16 S.Ct. 839; Ross v. State (1973), 61 Wis.2d 160, 169-73, 211 N.W.2d 827, 831-33.) It is also well settled, however, that such an instruction should not be given if the evidence clearly demonstrates that the crime was murder or nothing and there is no evidence to support a conviction of manslaughter. People v. Craven (1973), 54 Ill.2d 419, 425; People v. Handley (1972), 51 Ill.2d 229, 235; People v. Jones (1943), 384 Ill. 407, 412.
The resolution of the question of whether defendant was entitled to the voluntary manslaughter instruction depends in the final analysis upon a detailed consideration of the evidence (People v. Burnett (1963), 27 Ill.2d 510, 511), and in this case, that evidence is contained solely in the State's case. Upon a review of the entire record in this case, and in particular that evidence relied upon by defendant, we cannot say there was any evidence which, if believed by the jury, would indicate that defendant acted upon serious provocation which would have excited a reasonable man to intense passion.
Defendant and deceased engaged in social drinking beginning at about 4 p.m. on a Sunday afternoon. At about midnight they were seen in a bar where they had a drink. The bar manager testified that defendant was not drunk and had no facial cuts. Between 1 and 1:30 a.m. the next morning, a deputy sheriff saw defendant and deceased engaged in a loud, verbal argument in a parking lot 250 to 300 feet from the bar. The officer saw defendant's face at close range, but observed no cuts or injuries. The officer told the defendant and deceased to go home and observed defendant enter the passenger side of deceased's car. The officer followed the car for a few miles because he felt the altercation might recommence.
Deceased's car was found off a county road at about 3:30 that morning. It was stuck in a ditch, heading in the direction of a lake. Her body was discovered under a bridge, down an embankment from her car. Blood stains were found on the panel of the passenger door of the vehicle. Deceased died from a single gunshot wound. The bullet entered through the upper lip and was fired from a distance of more than six or seven inches. The fatal wound was caused by a .38-caliber pistol bullet which could have been fired from a Titan Tiger .38 pistol. Defendant had purchased such a gun approximately seven months prior to the shooting. The deceased's body had other wounds, scratches or bruises, most of which occurred after death. A pathologist testified that deceased had .11% alcohol in her blood at the time of her death and that an individual may suffer some observable effects of alcohol with a .1% level of alcohol in the blood.
Defendant was next seen when he arrived at his estranged wife's trailer at 5 a.m. He had mud and briars on his boots and pants, a "deep gash" on the bridge of his nose, blood stains on his shirt, and abrasions on his right knuckles. He carried a bundle which contained clean clothing and deceased's purse. He cleaned up, changed clothing, and burned a bundle the size of a throw pillow.
The evidence shows that defendant and deceased had been arguing loudly and intently. However, mere words have never been held to be sufficient provocation to establish voluntary manslaughter. People v. Crews (1967), 38 Ill.2d 331, 335; Ill. Ann. Stat., ch. 38, par. 9-2, Committee Comments 1961, at 206-07 (Smith-Hurd 1972); M.C. Bassiouni, Substantive Criminal Law sec. 8.1.1 (1978).
The evidence shows that at 5 o'clock on the morning of decedent's death, the defendant had a gash on his nose which he emphasizes could have been caused by decedent's fingernail. Evidence of mutual, physical combat has been held sufficient to require a manslaughter instruction. (People v. Craven (1973), 54 Ill.2d 419, 425; People v. Canada (1962), 26 Ill.2d 491, 494; see also People v. Crews (1967), 38 Ill.2d 331, 335; Ill. Ann. Stat., ch. 38, par. 9-2, Committee Comments 1961, at 206-07 (Smith-Hurd 1972); M.C. Bassiouni, Substantive Criminal Law sec. 8.1.1 (1978); W. La Fave and A. Scott, Criminal Law sec. 76, at 574 (1972).) But, as the Supreme Judicial Court of Massachusetts noted, in affirming a trial court's refusal of a voluntary manslaughter instruction, "[i]t is an extravagant suggestion that scratches by the wife could serve as provocation for a malice-free but ferocious attack by the defendant with a deadly instrument." (Commonwealth v. Rembiszewski (1973), 363 Mass. 311, 321, 293 N.E.2d 919, 926.) An abrasion on a knuckle normally bespeaks an injury which is self-inflicted. Blood on the door panel is not indicative of serious provocation. Scratches or bruises suffered by decedent before death do not demonstrate that defendant was aroused to intense passion by serious provocation.
The record fails to present any evidence of the sort of provocation which would have justified voluntary manslaughter instructions. There was no testimony of an exchange of blows (People v. Craven (1973), 54 Ill.2d 419; People v. Joyner (1972), 50 Ill.2d 302; People v. Taylor (1967), 36 Ill.2d 483). There was no testimony of and corroborating evidence of a severe beating by the deceased upon the defendant (People v. Harris (1956), 8 Ill.2d 431; People v. Papas (1942), 381 Ill. 90) or of a threatened attack (People v. Pierce (1972), 52 Ill.2d 7; People v. Jones (1943), 384 Ill. 407). There was no testimony of an armed attack immediately prior to the fatal encounter to justify the jury in concluding that the deceased was armed at the moment of that encounter (People v. Canada (1962), 26 Ill.2d 491). The evidence of provocation presented by the record here is more analogous in seriousness to that found in People v. Izzo (1958), 14 Ill.2d 203, and People v. Handley (1972), 51 ...