Appeal from the Circuit Court of St. Clair County; the Hon.
John J. Hoban, Judge, presiding.
JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Defendant, James Ward, was convicted of murder of a four-year-old boy after a jury trial in the circuit of St. Clair County and sentenced to 25 years' imprisonment. He appeals, contending that the trial court improperly refused his tendered instructions on involuntary manslaughter and improperly excluded evidence of prior child abuse on the part of the deceased's mother, Harriet Young, who had previously been convicted of the murder of the child. He also assigns as error certain prejudicial argument of the prosecution, to which his objection was overruled, that stated to the jury, in essence, that the basis of the conviction of the child's mother was a determination by that jury that the mother was accountable for the acts of defendant, which in fact caused the child's death.
Montez Moore lived with his mother, Harriet Young, and a younger brother in East St. Louis. Defendant was a boyfriend of Young, staying at her home periodically. Defendant visited Young Monday, February 16, and Tuesday, February 17, the week of Montez' death. Montez appeared to be in good health both days. At 2:30 or 3 a.m. on Thursday morning, defendant came to Young's home. When he arrived, Young told him Montez had urinated in bed and had put cocoa in the dog's pail. Defendant asked if she had whipped him and Young replied that she had. Defendant did not punish Montez although Young asked him to do so. Defendant stayed and slept at the house, awakening around 11 a.m. Thursday morning. Young then left the house to go to the store but soon returned.
The circumstances surrounding the fatal beating are disputed. Young testified that when Montez awoke she whipped him with a mop handle for urinating in bed. She did not "beat him." She testified that she saw defendant then beat Montez twice; around 12 p.m. defendant hit Montez severely on his chest, stomach and back with the mop handle. The beating was punishment for urinating in bed. An hour later defendant beat Montez again, this time for no apparent reason. Defendant and Montez were sitting on Montez' bed when defendant hit the child on the chest and stomach with the mop handle. Defendant testified that he did not touch Montez. He stated that after Young went to the store, he went back to sleep and slept until he left the house at 4 p.m.
Mary Owens, sister of defendant, arrived at Young's home at the same time defendant was leaving. She talked with Young and then laid down to rest. She was awakened by her son who told her Montez would not wake up. Young had left the room while Owens slept and was with Montez attempting to awaken him. Owens recalled that the child felt like ice. An ambulance was called.
Montez was pronounced dead on arrival at the hospital at 8:20 p.m., February 19. The examination revealed that his body was covered with multiple linear bruises that could have been caused by beating with a mop handle. His face, arms and buttocks were swollen and discolored. He appeared to be malnourished. The cause of death was respiratory arrest from a cerebral edema and injuries to the lungs accompanied by aspiration of milk into the airway. The fatal injuries were inflicted by beating the child with a blunt instrument. The pathologist was of the opinion that the bruises were administered in a single beating.
Young went to the hospital and was questioned there about the boy's injuries. She acknowledged at trial that she gave hospital personnel four or five different explanations for the injuries to cover for herself and for defendant and because defendant told her to tell a story. Young was subsequently convicted of murder in a separate trial.
Defendant turned himself in when he heard of Young's arrest. Officer Moore of the East St. Louis Police Department testified his investigation revealed that both Young and defendant were involved in the beating. A broken mop handle, a window shade roller and a shoe were taken from Young's home as possible weapons.
While in custody, defendant asked to see Viola Moore, grandmother of the child. Moore came to the station and talked with defendant. Officer Moore testified that he overheard parts of the conversation and heard defendant say that he didn't mean to do it; he had beaten Montez for putting some cocoa in the dog's water. When he heard Viola Moore ask why they didn't get medical help for the boy, Detective Moore stopped the conversation and asked Viola Moore to leave. Ms. Moore testified to the same conversation, adding that defendant said he started beating Montez with a shoe, then became angry and used a stick.
Defendant acknowledged that Moore came to the station but denied both asking for her and talking to her.
There was testimony that both Young and defendant had beaten the children previously. Three witnesses, two sisters of defendant, testified that defendant babysat for their children and that he never harmed them. Testimony also revealed that Young's oldest child was taken from her by the Illinois Department of Children and Family Services. Details of the reason for this action were excluded by the trial court.
Defendant's principal assignment of error is the refusal of the court to give his tendered instruction on involuntary manslaughter. At the instruction conference, the court noted that defendant had testified that he did not beat the child and reasoned that if he had admitted that he had beaten Montez, then the determination of whether his acts were performed recklessly or with the requisite mental state to constitute murder would be for the jury to determine, but inasmuch as he had denied the beating, the issue for the jury to decide was whether he was not guilty or guilty of murder.
• 1 However, it is well settled that if there is any evidence, regardless of its source, which tends to prove that defendant is guilty of the lesser-included crime of involuntary manslaughter, he is entitled to have the jury instructed on the lesser crime even though he has denied that he performed the act in question or defended on the basis of accidental homicide. People v. Scalisi (1926), 324 Ill. 131, 154 N.E. 715; People v. Farmer (1977), 50 Ill. App.3d 111, 365 N.E.2d 177; People v. Dortch (1974), 20 Ill. App.2d 911, 314 N.E.2d 324; and People v. Bembroy (1972), 4 Ill. App.3d 522, 281 N.E.2d 389.
Murder is defined as the intentional killing of another without lawful justification or the killing of another intending to do great bodily harm or knowing that the facts performed will cause death or create a strong probability of death or great bodily harm (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(a)). Involuntary manslaughter is the unintentional killing of another where the "* * * acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm * * *" and are performed recklessly. Ill. Rev. Stat. 1981, ch. 38, par. 9-3(a).
A person intends a result "* * * when his conscious objective or purpose is to accomplish that result * * *." (Ill. Rev. Stat. 1981, ch. 38, par. 4-4.) A person acts with knowledge of "[t]he result of his conduct * * * when he is consciously aware that such result is practically certain ...