APPEAL from the Circuit Court of Marion County; the Hon. PAUL
M. HICKMAN, Judge, presiding.
MR. PRESIDING JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
The defendant, Jimmy D. Williams, was charged by information with the murder of LaMar Meeks. Following a jury trial, at which he interposed a defense of justifiable use of force, defendant was convicted of murder (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(a)) and sentenced to 20 to 40 years in the penitentiary. Defendant appeals contending (1) the information was fatally defective, (2) omissions in the instructions to the jury require reversal, (3) the State's impeachment of a defense witness was not properly completed, and (4) the fairness of defendant's trial was adversely affected by the prosecutor's closing argument.
The matter in question occurred outside Shorty's Lounge in Centralia on September 18, 1977, just after the lounge closed for the night. Shortly after 2 a.m., defendant and the victim became involved in an argument. Several State's witnesses saw all or part of that argument and the subsequent shooting. They testified that the victim seized defendant by the leg or trousers and threw him over a fireplug. Defendant got up; the conversation became conciliatory, and they shook hands.
What happened next is in dispute. According to witnesses for the State, the victim walked into the intersection in front of Shorty's, where he spoke with two friends. The victim asked for and received a beer. Defendant walked into the intersection, pulled a gun from beneath his coat, and spoke to the victim. When the victim turned, defendant shot him from a distance of 10 to 20 feet. The victim spun left, grabbing at his chest and shoulder. Defendant fired another shot quickly after the first. The victim retreated to the side of a building, where he fell or laid on the ground. Defendant walked over to where the victim was lying. The victim begged defendant not to shoot him again. The witnesses heard two or three more shots.
Defendant's account of these events differed substantially from that summarized above. He testified he ate dinner with his brother at a Centralia restaurant. As they left, they noticed and joined a sidewalk dice game. After they had been playing for some time, the victim called defendant away and asked him to take a pistol in pawn for $20. Defendant agreed to do so and accepted the pistol. After the game dispersed, the victim asked for his pistol back, telling defendant he would pay him later. Defendant refused. The victim told defendant he would get his pistol back "one way or the other" before the day was through.
Defendant then went to Shorty's Lounge, where he stayed until closing. While he was seated at a table there, the victim struck him twice from behind.
When defendant left Shorty's in the company of two friends, the victim blocked the sidewalk on which defendant was walking. Defendant stopped, and the victim approached. After they traded insults, the victim knocked defendant over a fireplug. Defendant asked the bartender to let him inside the bar; he was told it was closed. The two men then shook hands. The victim struck defendant across the throat.
Defendant testified he saw his friend Henry Leake driving away in defendant's brother's car, and tried unsuccessfully to stop him. Looking toward the street, he saw the victim standing with two men in the intersection. The victim came over to where defendant stood and seized his arm. Defendant pulled away; the victim returned to the street. Defendant attempted to escape on foot. The victim told him to stop, that he was not through with him yet, and that he was coming to get his pistol now. The victim ran toward him; the other two men also came toward him, moving more slowly. Defendant testified he thought "it was me or either LaMar Meeks." He pulled out the victim's pistol and shot twice quickly. The victim turned and ran to the right; the other two men ran left. Defendant did not know whether the victim was shot. Defendant ran up to where the victim was "laying" and fired two more shots.
Defendant testified on cross-examination that he could not see the victim well during the second set of shots. He testified he thought the victim was lying in ambush at the time. He described the victim as "in a squat" at that time.
A police officer and a Department of Law Enforcement technician testified regarding their examinations of the victim and his clothing. Officer Simer identified a photograph of the victim's right knee area, which showed a bullet entrance wound below the knee and an exit wound above the knee. Bill Austin, the technician, testified he found four holes in the victim's shirt, one at midsternum and the rest in the lower left waist area. He also found an entrance and an exit hole in one leg of the victim's trousers, the exit hole higher than the entrance. In his opinion, either the gun was held lower than the entrance wound, or the victim was lying down when shot. This witness indicated he found no powder burns, either on the victim's clothing or on the body at the autopsy. In his opinion, the lack of powder on the clothing indicated the victim was approximately five feet or more from the gun muzzle when shot.
Terry Williams, defendant's brother, testified in defendant's behalf regarding the events of the early evening, including the dice games and the passing of money between his brother and the victim. He heard the shots, but did not see the shooting.
Henry Leake testified for defendant that both defendant and the victim were his friends. He saw the argument which resulted in defendant being "pushed" against the fireplug. He left the area after that argument. According to this witness, he tried to persuade defendant to leave with him at that time, but defendant refused.
Several witnesses testified they were in Shorty's Lounge during the night in question. None, including the proprietor, saw the victim inside the lounge. "Shorty" testified that, although the victim was his friend, the victim had been barred from the lounge.
Defendant's first contention of error is that the trial court improperly refused to dismiss the instant information, in which it is alleged that defendant "shot LaMar Meeks with a pistol causing the death of said LaMar Meeks knowing that said act created a strong probability of death or great bodily harm to LaMar Meeks * * *." Defendant assigns as error the State's failure to allege that said act was done "without lawful justification." Section 9-1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(a)) provides that a person "who kills an individual without lawful justification commits murder if, in performing the acts which cause the death * * * [h]e knows that such acts create a strong probability of death or great bodily harm to that individual * * *." In defendant's answer to the State's discovery motion, it was stated that defendant contemplated interposing a defense of justifiable homicide. After the jury was selected, the State moved to amend the information by inserting the words "without lawful justification." Defendant opposed the motion and moved to dismiss the prosecution. The court denied both motions.
1 The State asserts in its brief that an information is sufficient if it contains sufficient information to apprise defendant of the charge with sufficient particularity to prepare his defense, and to permit him to plead his conviction or acquittal in bar to any subsequent prosecution for the same offense. If an indictment or information satisfies the foregoing test, it will be upheld when attacked for the first time on appeal. (People v. Pujoue (1975), 61 Ill.2d 335, 335 N.E.2d 437; People v. Lofton (1976), 42 Ill. App.3d 211, 355 N.E.2d 674, rev'd on other grounds (1977), 69 Ill.2d 67, 370 N.E.2d 517.) In order to withstand a pretrial motion or a motion in arrest of judgment, however, a charging instrument must strictly comply with the explicitly stated requirements of section 111-3(a) of the Code of Criminal Procedure (People v. Dyer (1977), 51 Ill. App.3d 731, 366 N.E.2d 572; Ill. Rev. Stat. 1977, ch. 38, par. 111-3(a).) That section requires that the charge set forth "the nature and elements of the offense charged." The instant information was challenged both in defendant's motion to dismiss the charge (before any evidence was presented) and in his motion in arrest of judgment. We must, therefore, apply the more stringent test.
Accordingly, we must determine whether absence of lawful justification is an "element" of the offense of murder which must be pleaded in the charging instrument. We hold that failure to allege absence of lawful justification is a mere formal defect which does not subject the information to dismissal.
2 A defense of justifiable use of force is an affirmative defense. (Ill. Rev. Stat. 1977, ch. 38, par. 7-14; People v. Garcia (1967), 90 Ill. App.2d 396, 232 N.E.2d 810.) An information shall not be dismissed and may be amended on motion by the State's Attorney or defendant at any time because of formal defects, including the failure to negate any exception, any excuse or proviso contained in the statute defining the offense (Ill. Rev. Stat. 1977, ch. 38, par. 111-5). The purpose of affirmative defenses and exemption provisions is to relieve the State of the time-consuming and wasteful task of alleging and proving many negative propositions which, if proven in the affirmative, would provide a good defense to the charges. (People v. Biers (1976), 41 Ill. App.3d 576, 353 N.E.2d 389; see also People v. Meeks (1979), 75 Ill. App.3d 357, 393 N.E.2d 1190.) The common affirmative defenses of insanity, infancy, self-defense, and ignorance or mistake, are normally not involved in criminal cases, and there is no good reason to require the State to allege the nonexistence of such defenses in each case. Once the issue of self-defense is raised by some minimum amount of evidence which is sufficient to warrant submission of the issue to the jury, the affirmative defense becomes another element of the offense and the State has the burden of proving defendant guilty beyond a reasonable doubt as to that issue as well. (People v. Warren (1964), 52 Ill. App.2d 374, 202 N.E.2d 131.) "Affirmative defense" as the term is used in the Criminal Code of 1961 means that unless the State's evidence raises the issue involving the alleged defense, the defendant, to raise the issue, must present some evidence thereon. (Ill. Rev. Stat. 1977, ch. 38, par. 3-2(a).) If the issue in an affirmative defense is raised then the State must sustain the burden of proving the defendant guilty beyond a reasonable doubt as to that issue together with all the other elements of the offense. Ill. Rev. Stat. 1977, ch. 38, par. 3-2(b).
3 In our opinion, the words "without lawful justification" contained in the statutory definition of murder are merely a reference to affirmative defenses defendant could interpose once charged. Once defendant interposes such a defense by the presentation of evidence of justification, proof of the absence of such justification beyond a reasonable doubt becomes an element of the State's case-in-chief. At the time the charging document is filed, however, no such element exists in the State's case. Unless defendant presents, for example, some evidence of self-defense, the State's proof is complete if the act which caused the death and the requisite mental state are proved beyond a reasonable doubt. In our view, it is anomalous to reverse defendant's conviction because the State failed to allege a matter it was not required to prove. In view of the authorities cited above, we do not interpret section 111-3(a) of the Code of Criminal Procedure (Ill. Rev. Stat. 1977, ch. 38, par. 111-3(a)) as requiring such an anomaly.
4, 5 In so holding, we are aware of cases stating that the elements of the offense of murder include the knowing, intentional, and unlawful taking of the life of another, including People v. Walden (1976), 43 Ill. App.3d 744, 357 N.E.2d 232, and People v. Clemens (1972), 9 Ill. App.3d 312, 292 N.E.2d 232, both cited by defendant. The court in Walden and Clemens was merely stating what the State was ultimately required to prove in those cases, not what the State was required to allege at the outset. We have found no authority requiring dismissal of a charge of murder for failure to allege that the act was done "without lawful justification." Accordingly, we view omission of the words "without lawful justification" from the instant information as a mere formal defect which does not subject the charge to dismissal. (Ill. Rev. Stat. 1977, ch. 38, par. 111-5.) The trial court should grant motions to amend informations and indictments to correct formal defects (Ill. Rev. Stat. 1977, ch. 38, par. 111-5), and the State's motion to amend the information in this case should have been granted.
Turning to defendant's contention that omissions in the jury instructions require reversal, defendant assigns as error the ...