Appeal from the Appellate Court for the Fifth District; heard
in that court on appeal from the Circuit Court of St. Clair
County, the Hon. John J. Hoban, Judge, presiding.
MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:
Defendant, Jerome Lockett, 18 years of age, shot and killed Henry Jones, 78 years of age. The defendant was convicted of murder after a jury trial in the circuit court of St. Clair County. He was sentenced to a term of not less than 25 years' nor more than 50 years' imprisonment. In a majority opinion, the appellate court reversed the conviction and remanded the cause to the trial court for a new trial. (75 Ill. App.3d 183.) We granted leave to appeal.
The facts surrounding the shooting are as follows. On the evening of September 3, 1973, the defendant and two of his friends, while in defendant's automobile, came upon the victim, who was pulling his pushcart filled with glass bottles. The defendant and his companions became engaged in an argument with the victim regarding his pushcart blocking the northbound lane of the street.
According to a written statement taken by a police officer, the victim approached the car on the passenger's side, reached into his back pocket and pulled out a smoking pipe. At this point, defendant stated that he and his passengers started laughing. Then, according to the statement:
"[T]he man said I've got something in here (and he was pointing at the Push Cart) that'll make you move, then the man reached down into the Cart and was bring [sic] up something brown, and that's when Fullalove [one of the passengers] said Lockett watch out and Fullalove was down on the seat and I thought the man had a gun so I got my gun from out of the waste can and shot one time at the man."
At trial, the defendant testified that he had to reach from the driver's seat over the front-seat passenger and out the window to fire the gun. He stated that the victim was throwing bottles at them, but that did not cause him to shoot. Defendant testified that he fired in the victim's direction when the victim started to approach him with a gun.
The investigating officers testified that the victim was dead when they arrived at the scene. They searched the immediate area and the pushcart, but found no weapon. An empty whiskey bottle was lying near the victim's body. Defendant's gun was subsequently recovered from a nearby field.
At the close of all the evidence, defense counsel tendered the definitional and issues instructions on voluntary manslaughter, Illinois Pattern Jury Instructions (IPI), Criminal, Nos. 7.03, 7.04, 7.05, and 7.06 (1968). Upon objection by the State that the instructions were not supported by evidence, the court refused to give them to the jury. The jury was given IPI Criminal No. 24.06, the instruction on justifiable use of force.
IPI Criminal Nos. 7.03 and 7.04 are based upon section 9-2(a) of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1973, ch. 38, par. 9-2(a)), which concerns voluntary manslaughter caused by serious provocation. The evidence reveals the absence of serious provocation in this case, and the trial court was correct in refusing to give IPI Criminal Nos. 7.03 and 7.04.
IPI Criminal Nos. 7.05 and 7.06 are founded upon section 9-2(b) of the Code, which covers voluntary manslaughter based upon an unreasonable belief of justification. Section 9-2(b) provides that a person is guilty of voluntary manslaughter when he intentionally or knowingly kills another under the unreasonable belief that the killing was justified under article 7 of the Code. Article 7, section 7-1, of the Code (Ill. Rev. Stat. 1973, ch. 38, par. 7-1) provides that a person is justified in the use of force intended to cause death or great bodily harm if he reasonably believes the force is necessary to prevent imminent death or great bodily harm. Justifiable use of force is a defense in a murder prosecution when the person's belief "is reasonable even if it is mistaken." (Ill. Ann. Stat., ch. 38, par. 7-1, Committee Comments, at 364 (Smith-Hurd 1972).) The State correctly draws a distinction between a reasonable, mistaken belief under section 7-1 (e.g., a reasonable belief that the victim was coming at him with a gun when the victim, in fact, had no gun) and an unreasonable belief under section 9-2(b) (e.g., a belief that the victim was coming at him with a gun and that belief was unreasonable). However, the State goes on to argue that because the defendant could have a reasonable (although mistaken) belief that he could act in self-defense he, therefore, was not entitled to an instruction on voluntary manslaughter based upon an unreasonable belief.
This contention is incorrect. A defense based upon self-defense does not preclude a voluntary manslaughter instruction in a murder prosecution. According to the committee note to IPI Criminal No. 7.05: "When the charge is murder, the defense is self defense, and the proof supports a voluntary manslaughter instruction and verdict, the order of instructions should be: first, Instruction 7.01 (Murder); second, * * * Instruction 7.05; third, applicable instruction from Chapter 24 — Defenses." (See also People v. Joyner (1972), 50 Ill.2d 302, 307.) It is the settled rule in murder cases that if there is evidence in the record which, if believed by a jury, would reduce the crime to manslaughter, an instruction defining manslaughter should be given. People v. Handley (1972), 51 Ill.2d 229, 235; People v. Joyner (1972), 50 Ill.2d 302, 306; People v. Canada (1962), 26 Ill.2d 491, 491-92; People v. Papas (1942), 381 Ill. 90, 94; People v. DeRosa (1941), 378 Ill. 557, 562.
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 upon which a jury might find the defendant guilty of manslaughter. People v. Handley (1972), 51 Ill.2d 229, 235; People v. Latimer (1966), 35 Ill.2d 178, 182; People v. Marsh (1949), 403 Ill. 81, 94; People v. DeRosa (1941), 378 Ill. 557, 562.
Several appellate court opinions have held that if the evidence supports a self-defense instruction, it will also support a voluntary manslaughter instruction. People v. Wright (1974), 24 Ill. App.3d 536, 542; People v. Zertuche (1972), 5 Ill. App.3d 303, 306; People v. Johnson (1971), 1 Ill. App.3d 433, 435.
We agree with those cases. A self-defense instruction is given in a homicide case when there is some evidence in the record which, if believed by a jury, would support a claim of self-defense. IPI Criminal No. 24.06, "Use of ...