APPEAL from the Circuit Court of Kendall County; the Hon.
WILSON BURNELL, Judge, presiding.
JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 28, 1982.
Respondent was tried in Kendall County for attempt (murder) and the jury returned a verdict of not guilty by reason of insanity. Thereafter, a hearing was held before another jury to determine whether he should be involuntarily committed, pursuant to section 5-2-4 of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1005-2-4). The jury found him to be a person subject to involuntary admission to a mental health facility. The court committed him to a mental health facility for an indefinite period of time not to exceed 10 years.
Respondent has a history of psychotic behavior. He suffered brain damage in an automobile accident on March 5, 1977. His condition required occasional hospitalization and medication, including valium. In the summer of 1978 he was a patient at Mercyville Hospital where he was diagnosed as psychotic, or out of touch with reality. He had signs of schizophrenia and depression. Upon his release from the hospital in August 1978 his prognosis for improvement was good, but this worsened due to respondent's nonadherence to suggested therapy.
The attack which prompted the charge occurred in the early morning hours of February 3, 1979. Respondent's father, Oliver Leppert, was awakened by a thump on his chest. By the light of the street lamp Oliver could see an arm with a knife. He could not see who his assailant was. He grabbed the individual and pushed him into the kitchen. He then realized his assailant was his son. Respondent informed his father that he had taken his entire supply of valium. He had refilled a prescription that day, obtaining 100 5-milligram tablets. Respondent was brought to the hospital where he was treated for a valium overdose.
Oliver suffered a large bruise and a very slight scratch on his chest. The knife used in the attack was a kitchen knife, 10 to 12 inches long. Its blade was bent, although before the attack it had been straight.
The day after the attack Oliver visited respondent at the hospital. In his only reference during the visit to the incident respondent said to Oliver, "Well, did I not use the longest knife, and did I not aim for your heart?"
When interviewed by a psychiatrist on March 14, 1979, respondent related that at the time of the attack he knew what he was doing but he believed the knife would bend and not kill his father.
Respondent first argues that because he was found to be insane at the time of the attack, that is, that "as a result of mental disease or mental defect, he lack[ed] substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law" (Ill. Rev. Stat. 1977, ch. 38, par. 6-2(a)), he lacked the requisite intent to attempt a murder and cannot have been found not guilty of attempt (murder) by reason of insanity. He contends that he should have been found not guilty of aggravated battery, a crime of general, not specific, intent, by reason of insanity. Respondent raises this issue, although the judgment was an acquittal, because when one is found not guilty of an offense by reason of insanity the maximum possible length of commitment to a mental health facility is based upon the maximum possible length of imprisonment that could have been imposed had defendant been found guilty of an offense. Section 5-2-4(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1005-2-4(b)) provides that "the initial order for admission of a defendant acquitted of a felony by reason of insanity shall be for an indefinite period of time; provided, however, that such period of commitment shall not exceed the maximum length of time that the defendant would have been required to serve, less credit for good behavior, before becoming eligible for parole had he been convicted of and received the maximum sentence for the most serious crime for which he has been acquitted by reason of insanity." Aggravated battery is a Class 3 felony (Ill. Rev. Stat. 1977, ch. 38, par. 12-4(d)) and therefore the maximum time for involuntary commitment could be only 2 1/2 years. (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005-8-1(a)(6).) For attempt (murder) the maximum commitment is 15 years. Ill. Rev. Stat. 1977, ch. 38, par. 8-4(c), and Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005-8-1(a)(3).
• 1 Respondent had moved for a directed verdict at the close of the State's evidence arguing that the State failed to prove the element of a specific intent to kill. We agree with the State, however, that the evidence of respondent's comment to his father, "Well, did I not use the longest knife, and did I not aim for your heart?" was sufficient evidence of intent to kill to put the question whether respondent held the specific intent to kill to the jury. The trial court properly refused to direct the verdict for defendant.
Respondent apparently believes, however, that the evidence adduced at the trial can only support a finding that aggravated battery was the offense committed and that we can and must reduce the degree of the offense from attempt (murder) to aggravated battery.
After reviewing the evidence we are not convinced that the offense committed was unquestionably aggravated battery and that respondent had not intended to kill his father. This is a close case factually, and it would have been possible to find either that the offense committed was attempt (murder) or that the offense was aggravated battery. Therefore, this is not a case in which we feel empowered to reduce the severity of the offense.
The jury was never instructed regarding aggravated battery. Respondent never tendered such an instruction to the court.
It is a general rule that when a defendant fails to tender an instruction a reviewing court cannot reverse for the failure to so instruct the jury. The defendant has waived the issue. (People v. Goodman (1981), 98 Ill. App.3d 743, 424 N.E.2d 663.) It is true that in criminal cases the waiver rule will not prevent a review of "substantial defects" in jury instructions "if the interests of justice require." (Ill. Rev. Stat. 1979, ch. 110A, par. 451(c); People v. Underwood (1978), 72 Ill.2d 124, 378 N.E.2d 513.) It has been recognized that in homicide cases if there is evidence in the record which, if believed by the jury, would reduce the ...