APPEAL from the Circuit Court of Cook County; the Hon. FRANK
J. WILSON, Judge, presiding.
PRESIDING JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:
Defendant, Conrad Brown, was indicted for arson, the murder of Robert Fender, and the murder of Thomas Patzke. He was tried by a jury and found guilty of arson and of the voluntary manslaughter of both Fender and Patzke. Under the extended term provision of the sentencing statute, he was sentenced to three concurrent terms of 14 years each for the three separate offenses. Defendant now appeals.
The following evidence was adduced at trial. In September 1971, defendant started his own business when he purchased a store in the city of Chicago. At the time of the events in question, defendant's business properties included a store, an adjacent bowling alley and tavern and other nearby land. Defendant lived in quarters in the back of his store.
Due to an accumulation of business debts, on June 24, 1975, defendant filed a chapter 11 bankruptcy action. On May 13, 1976, the bankruptcy court gave the Small Business Administration (SBA) leave to foreclose on a loan which it had made to defendant.
Thomas Patzke, a SBA loan officer, and Robert Fender, an auctioneer who did work for the SBA on a contractual basis, were assigned to liquidate defendant's loan. On March 23, 1977, Patzke and Fender made a field visit to defendant's store to take inventory of the merchandise pledged as collateral for defendant's loan and to ask for peaceful possession. Shortly after Patzke and Fender arrived, defendant asked all of his employees to leave the premises for a while. As to what transpired in the store after this among Patzke, Fender and defendant, we have only defendant's testimony to rely upon.
Defendant testified as follows. Defendant told Patzke that he was worth $200,000.00 and that he would give Patzke all the cash money he had if Patzke would give defendant a few more days. Patzke asked defendant how much money he had and defendant said that he had eight or nine thousand dollars. Patzke then made a phone call. That such a phone call was made was corroborated by James Burke, Patzke's supervisor.
Defendant further testified that after Patzke returned from his phone call, Patzke told Fender to take the money. Defendant went back into his living quarters to get the money. Then Fender, accusing defendant of stalling for time, pushed open the door to defendant's living quarters and Patzke and Fender entered. Defendant handed the money to Fender who kept half and gave the other half to Patzke.
Defendant testified that Fender next asked him for the keys to the store; when defendant refused, a scuffle ensued in which Fender and Patzke received injuries which caused their deaths. This struggle took place outside of defendant's living quarters.
Defendant testified that towards the end of the struggle he smelled smoke coming from his living quarters, so he started moving towards the back of the store. He looked back and saw Fender staggering and bleeding. Defendant hurried through the store and through the bowling alley adjacent to the store.
A massive fire destroyed defendant's store. The bodies of Patzke and Fender were found inside the building. When Patzke was found, his hands were tied in front of him. At trial, Dr. Robert Stein, chief medical examiner of Cook County, testified that both Fender and Patzke died from cranial-cerebral injuries in association with acute carbon monoxide toxicity. Dr. Stein testified that Fender suffered from seven head lacerations that were the result of seven individual blows. There were several lacerations on Patzke's head. Dr. Stein further testified that the wounds on each man were consistent with each individual having been struck with a blunt instrument.
Shortly after defendant came out of his building, police and firemen were at the scene. Although defendant remained in the vicinity for a while, he did not inform police or firemen that two men were still in the burning building. When asked at trial whether he remembered hitting the men and leaving them behind, defendant testified, "I guess you could say that." A number of witnesses who saw defendant after the fire testified that they noticed nothing unusual about defendant's appearance or behavior.
Defendant testified that during a portion of the night after the fire he stayed with his former wife at her apartment. Twice the police went there looking for defendant; he avoided them. The morning after the fire, defendant, with his attorney, surrendered to the police. Defendant had with him a bottle of arsenic and told police that unless he could speak to the mayor he would kill himself and many others.
Defendant first contends that the trial court erred in refusing to instruct the jury as to self-defense and defense of dwelling. An instruction regarding a legally recognized defense which has some foundation in the evidence must be given by the trial court and even very slight evidence on a given defense entitles a defendant to an instruction on that defense. (People v. Harris (1976), 39 Ill. App.3d 805, 350 N.E.2d 850.) In determining whether there was any evidence that required an instruction of self-defense or defense of dwelling, we must review the evidence adduced at trial in light of the pertinent statutes.
Self-defense is defined by Illinois statute as follows:
"A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other's imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony." Ill. Rev. Stat. 1977, ch. 38, par. 7-1.
In determining whether an instruction on self-defense should have been given, the trial court had to rely upon defendant's testimony as to what transpired on March 23, 1977. According to defendant, there was a struggle in a storage area of the building with the two men over his store keys. During the struggle defendant was pushed to the ground. The two men were also on the floor struggling for the keys. Defendant picked up a pipe and struck Fender who fell back. At that point the struggle was apparently at a standstill. Defendant, however, had Patzke tie up Fender. Then, when neither Patzke nor Fender was threatening defendant, he began striking both men repeatedly with a piece of pipe. Defendant testified that he did not know why he hit them.
• 1 Relying on defendant's own testimony, we find no evidence that defendant reasonably believed it was necessary for him to beat Patzke and Fender with a length of pipe to "prevent imminent death or great bodily harm." Defendant was not under attack when he began beating the victims nor was it reasonable for him to believe that force was necessary to prevent great bodily harm to himself. Thus, the jury instruction on self-defense was properly refused by the trial court.
Defense of dwelling is defined by Illinois statute as follows:
"A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to prevent or terminate such other's unlawful entry into or attack upon a dwelling. However, he is justified in the use of force ...