APPEAL from the Circuit Court of Madison County; the Hon.
HORACE L. CALVO, Judge, presiding.
MR. PRESIDING JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
The defendant, Norvell Smith, was charged with attempt murder and aggravated battery. After a jury trial in the circuit court of Madison County, defendant was convicted of aggravated battery and sentenced to four years' imprisonment. The only issue on appeal is whether the court erred in refusing defendant's proposed jury instructions on the offense of reckless conduct. We affirm.
On December 7, 1977, Carolyn Garcia and her boyfriend, Charles Jackson, stopped at the Union 76 Truck Stop. As Ms. Garcia went to the washroom, she saw defendant stare at her. She described the stare as "just looking crazy." After two minutes, Ms. Garcia came out of the washroom and defendant again stared at her. Because defendant's stares scared her, she tried to find her boyfriend, who was not in his truck. She went back inside the truck stop building. Defendant said, "Hi," but she kept on walking. Defendant walked in front of her, reached toward his pocket, shot her in the abdomen, and started laughing. She did not see a gun as she was looking at her boyfriend. Because she did not realize instantly that she had been shot, she kept walking. The shot sounded like a cap pistol. She was never closer than 10 feet to the defendant. When she realized that she had been shot, she saw defendant standing with a gun. Defendant stated twice that he was sorry. As a result of the wound Ms. Garcia spent two weeks in the hospital.
Charles Jackson testified that while he was in the truck stop's gift shop he heard something like a firecracker go off. He then heard Ms. Garcia holler that she had been shot. He saw defendant waving the gun. He did not hear defendant laugh but heard him state twice he was sorry. Defendant put the gun in his pocket and went into the restaurant. Mr. Jackson did not see defendant until defendant had visibly displayed the gun.
When the police arrived at the truck stop they arrested defendant in the restaurant and removed the pistol from his pocket. The gun was loaded and had five rounds in the clip and one in the chamber. The safety was off. The gun was capable of being fired. At the police station defendant stated that he did not shoot Ms. Garcia. The police found nothing unusual about defendant's jacket.
The defendant testified that he had been in the truck stop for 10 to 15 minutes when the incident occurred. He stated that he may have seen Ms. Garcia in the building earlier, but he was not sure if it was the same woman. He stated that he was not following her. He had an automatic pistol in his pocket. This pistol was capable of firing without one's having to move the breech. The safety on the pistol was "jammed" and would not turn. The defendant examined a pistol handed to him by the prosecutor and said it looked like the one he had owned. The defendant examined the safety on the pistol and stated that it did not appear to be jammed at that moment.
The defendant testified that he was going outside to have gas put into his car when a woman who was coming in pushed against the door just before he did. He was unsure whether or not the woman was Ms. Garcia because Ms. Garcia appeared to be shorter than the woman. He was not paying attention to the woman's face.
The defendant stated that the woman bumped into him. He heard a noise like a shot. He stopped, and the woman kept walking. He believed that the gun was in his right hand jacket pocket. He did not have his hand on the gun as he went out the door. The defendant stated that he had not laughed after the gun discharged but had stopped to see what was wrong with the woman. He took the gun from his pocket, unsure whether it had discharged. He put the gun back into his pocket because he did not want anyone to think that he was trying to rob the truck stop. When the woman kept on going, he walked back into the restaurant.
The defendant stated that he did not speak to Ms. Garcia before the gun discharged. He did not know the woman and had not intended to shoot her.
The defendant had previously planned to take the pistol to a pawn shop to repair the jammed safety, but the shop had been closed. He had put the gun into his pocket when he got out to get gas. He had forgotten about its being in his pocket and had walked into the building without realizing it was still there.
In order to be classified as a lesser included offense, "all the elements of the lesser must be included within the greater." (People v. Smith (1980), 78 Ill.2d 298, 306, 399 N.E.2d 1289, 1294; People v. King (1966), 34 Ill.2d 199, 215 N.E.2d 223.) This requirement is a substantial one designed to protect the defendant from exposure to double jeopardy. (People v. Smith). An included offense is defined by section 2-9 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 2-9) as an offense which "(a) [i]s established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged, or (b) [c]onsists of an attempt to commit the offense charged or an offense included therein." People v. Smith.
Section 12-5 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 12-5) defines reckless conduct as "[a] person who causes bodily harm to or endangers the bodily safety of an individual by any means, commits reckless conduct if he performs recklessly the acts which cause the harm or endanger the safety, whether they otherwise are lawful or unlawful." Section 4-6 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 4-6) defines the term "recklessness" as follows:
"A person is reckless or acts recklessly, when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation. An act performed recklessly is performed wantonly, ...