APPEAL from the Circuit Court of Cook County; the Hon. JAMES
L. GRIFFIN, Judge, presiding.
MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
Defendant Willie Milton was indicted on two counts for the murder of Freddie Johnson, two counts for the battery of Johnny Wilson, and one count for the attempt murder of Johnny Wilson. After a jury trial defendant was found guilty of the voluntary manslaughter charge of Johnson and the aggravated battery of Wilson. He was sentenced to 6 to 18 years and fined $4,000 on the voluntary manslaughter conviction and was sentenced to a concurrent term of 3 to 9 years and fined $1,000 on the aggravated battery conviction. On appeal defendant seeks reversal of his voluntary manslaughter conviction based on four contentions: (1) the evidence does not sustain a conviction for voluntary manslaughter; (2) the jury should not have received any instructions on voluntary manslaughter; (3) the jury was not properly instructed on justifiable use of force; (4) the trial court improperly prevented defendant from impeaching a crucial prosecution witness with prior conflicting statements. The third and fourth contentions are also urged by defendant in seeking reversal of his conviction for aggravated battery.
We reverse defendant's convictions and remand for a new trial.
The issues raised on appeal necessitate a summary of the relevant testimony. Three eyewitnesses testified for the State, Eugene Knox, Walter Davis, and Johnny Wilson. Knox was the owner of a hardware store at 628 South Pulaski in Chicago. On October 6, 1974, Knox was in the store after hours with defendant, Johnny Wilson, Freddie Johnson, Davis, and two or three others. They had been gambling with cards and drinking beer, though no one was drunk. Between 8 and 9 p.m., when Knox was in the back of his store, he heard two shots. He went to the front of the store and saw defendant standing with a gun in his hand. Wilson, who was sitting on a counter, said something to defendant which Knox could not hear. Defendant said, "Pal, you must want some too" and shot Wilson, who fell over the back side of the counter. Knox moved closer to the front door and asked defendant not to shoot him. As he approached he saw Freddie Johnson lying on the floor. At that time a police officer entered. At no time that day did Knox see a weapon in the possession of Wilson or Johnson. The defendant did not come into the store with a woman that day, nor did Knox recall hearing Johnson make an offensive remark to a woman accompanying the defendant.
Walter Davis testified he went to the store between 7 and 7:30 in the evening. In the back room were Knox, the defendant, Freddie Johnson, and a number of others, including one woman. When Davis arrived a dice game started. There was no drinking while he was there. About 8:30 or 9 the game broke up because defendant had won and the others were broke. Everyone began to leave when defendant and Freddie Johnson, who were three feet apart, started to argue. Johnson swore at defendant and told him not to come back on the corner. Defendant asked if this was a threat. Johnson again swore at the defendant and repeated that he should not come back to that corner. Defendant struck Johnson with his hand and Johnson kept swearing at him. At this point there was gunfire and Davis saw that defendant had the gun in his hand. He never saw a gun in Johnson's hand, nor did he see Johnson strike defendant. Knox ran up from the rear of the store, telling defendant not to shoot him. Johnny Wilson had been three or four feet from the defendant, but when the gunfire started he moved against a counter. From there Wilson, who had nothing in his hands, told defendant not to shoot Johnson again. Defendant asked Wilson if he wanted "some of it" and then Davis again heard gunfire. Wilson was hit and fell behind the counter. Davis did not know if anyone complained to the defendant about losing money; nor did he see anyone put their hands in defendant's pockets.
Johnny Wilson related he arrived at the store about 7:30 p.m. He had been playing pool nearby with a friend and had one alcoholic drink there. He went to the back office where Knox, Davis, Johnson and some others were present. They were talking when defendant came in. No gambling or drinking took place while Wilson was there. Some joking and teasing went on about a young lady who was with the defendant. Johnson then told defendant if he was afraid for the woman he should have left her in the car. Defendant responded that he did not have to take her to the car. Johnson said he should have if he was afraid someone was going to take her. This conversation began as everyone was leaving the office. The woman left the store. In the main part of the store defendant pulled a pistol and put it to Johnson's head, saying that he did not have to leave the woman outside. He took the gun away from Johnson's head and Johnson told him he should not play that way. Defendant pulled the gun back out of his belt and slapped Johnson. Johnson told him he might as well shoot him if he was going to slap him and pull the pistol on him. Defendant responded that he did not have to shoot him and Johnson said he might as well. Defendant said "If that is what you want, pal" and shot Johnson three times. Wilson never saw Johnson with a weapon nor was he himself armed. After the shooting Wilson asked defendant why he had done that. Defendant said "You want some too, pal" and shot Wilson, who fell behind the counter on which he had been sitting. He heard Knox pleading not to be shot and then the police arrived. Wilson testified that defendant's slacks were not ripped and neither he nor Johnson ever touched the defendant.
The pathologist who examined Johnson's body determined that two bullets struck him, one behind the ear and the other in front, about three inches above the belt. The bullet wound to the head was the cause of death.
Testifying for defendant were two eyewitnesses, Marshall Sprawls, Alex Beverly, and the defendant himself. Marshall Sprawls testified he arrived at the store about 6 p.m. He placed a gun he had in Knox's drawer, then went to the office in the rear, where people were gambling with dice. Sprawls did not drink, but others were drinking and Knox, Johnson and Wilson were drunk. Willie Milton arrived with a young woman about 6:20 and gambling continued until 8:30. Sprawls won $500 and defendant won even more than that. Freddie Johnson kept swearing at defendant and asking him for money, but defendant refused. When the game broke up Sprawls left to collect some money. When he returned defendant and Johnson were in the main part of the store, arguing, and Wilson was sitting on the counter. Johnson said "Give me that money, you m____ f____." Defendant told him to leave him alone. Then Sprawls heard defendant say, "Get out of my pocket." The defendant and Johnson were close together at this point; Johnson reached behind his back, where he had a gun, and shooting started. Wilson jumped off the counter and got into a "tussle" with defendant and Johnson. Sprawls hid behind the counter. He heard a total of three shots; after the third shot Wilson came back over the counter. Sprawls ran and was detained by the police.
Alex Beverly arrived at the store between 4 and 4:30, going into the back office to join Wilson, Johnson, the defendant, and a fourth man. Gambling with dice was going on and Beverly participated for about an hour and a half. During this time defendant and Johnson argued about the fact that Johnson kept picking up the money. Beverly left around 5:30 and returned at about 8:30. He heard Johnson ask defendant for money, a request defendant refused. Johnson and defendant began swearing at each other. Wilson, who was sitting on the counter, said "Go ahead get [sic] you some of that money." Defendant began to walk to the door, but Johnson said he would kill him if he left because he would not give him and money. Defendant turned from the door and Johnson swore at him and again demanded money. Defendant refused and said he (defendant) would have more respect for Johnson's lady. He then asked the lady to leave the premises and she complied. When defendant again started for the door Johnson asked him not to leave, also saying "If I don't kill you here, I'm going to kill you on the streets." Defendant turned back and asked Johnson why he was threatening him. Defendant told Johnson he did not have to give him his money. Wilson then told Johnson to go ahead and get some money. Johnson, swearing at defendant and saying defendant was going to give him money, reached behind his back, pushing his jacket aside. Wilson came off the counter and he and Johnson began struggling with the defendant. During the struggle defendant yelled "Get out of my pocket." Beverly heard three shots but did not see what happened because he ran out the door, where he was met by the police. Beverly denied drinking while at the store. He also testified that he never saw a gun in anyone's hand that night.
Defendant testified that he arrived at the store about noon. He, Johnson, Knox and some others played cards till about 3. Later a dice game began. During the dice game Johnson argued with defendant about his (Johnson's) right to hold the money. Johnson was not playing but he swore at defendant and asserted his right to hold the money. At 5:30 defendant left, returning in about 40 minutes with a woman friend. They went into the back office were defendant joined a dice game in progress. Defendant and Sprawls were the winners in the game and defendant quit at about 8:30 with $625. He began to walk out of the store but Johnson followed, cursing him and demanding money. Defendant refused and Johnson told him if he did not let him have it defendant was not going to live to get out of the store. Defendant indicated his intention to live and Johnson again swore at him and demanded money. Defendant refused, stating he did not owe him any. When defendant refused another demand for money Johnson approached to within two feet and reached under his coat. Defendant grabbed Johnson's hands. Wilson ran over and reached into defendant's left pants pocket. The pocket and pants seam were torn down to defendant's knee. As they wrestled, with defendant trying to hold on to his money, a gun discharged three times. Johnson slumped to the floor and Wilson fell behind the counter. Defendant had not see a gun but he had felt one in Johnson's hand. The police entered and picked the gun off the floor. Defendant denied having anything to drink that night.
Defendant had also testified that he wore his pants in their torn condition for several days in jail following his arrest. To rebut this testimony the State elicited the testimony of Officer Edward Triggs who saw the defendant at the police station on the day of the shooting and noticed nothing unusual about his left pants pocket and seam.
1, 2 Contrary to defendant's contention, we find that this record amply supports a finding that defendant committed voluntary manslaughter. The jury was instructed on two alternate theories of voluntary manslaughter: killing while acting under a sudden and intense passion resulting from serious provocation (Ill. Rev. Stat. 1975, ch. 38, par. 9-2(a)), and killing in the unreasonable belief that circumstances justify the act. (Ill. Rev. Stat. 1975, ch. 38, par. 9-2(b).) There was evidence presented that defendant and the deceased had quarreled earlier in the day and that just before the shooting an argument began again. The deceased repeatedly swore at the defendant and, according to the testimony of Beverly and Sprawls, the two began fighting. Evidence that a defendant who killed an individual was acting under a sudden and intense passion caused by a violent struggle with that person has been held sufficient to support a finding of voluntary manslaughter. (People v. Goolsby (1977), 45 Ill. App.3d 441, 359 N.E.2d 871.) Alternatively, defendant's own testimony tended to establish that he believed his life was in danger and that the deceased and Johnson were attempting to rob him. The jury may have believed defendant's testimony to this exent but they may have determined that his fears were unreasonable under the circumstances. Where the trier of fact finds that a defendant killed another in the unreasonable belief that deadly force was necessary to protect himself, a finding of voluntary manslaughter is ...