Appeal from the Circuit Court of Tazewell County; the Hon.
John A. Gorman, Judge, presiding.
JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 11, 1986.
Defendant appeals his conviction for the murder of Harry Dycus after a trial by jury in the circuit court of Tazewell County.
Defendant was charged in a five-count indictment with the murder of Harry Dycus. Each count of the indictment alleged a different portion of murder as defined in the Criminal Code of 1961, sections 9-1(a)(1) and (2) (Ill. Rev. Stat. 1983, ch. 38, pars. 9-1(a)(1), (2)). Count I stated that the defendant acted with the intent to kill. Count II claimed he acted with the intent to do great bodily harm. Count III stated that he acted knowing that his acts would cause death. Count IV alleged that he acted knowing his acts created a strong probability of death. Count V charged that his actions created a strong probability of great bodily harm.
The evidence adduced at trial showed that on January 25, 1984, the defendant, Harry Dycus, Diane Dycus (Harry's wife), and Barry Sager were at Dycus' home drinking in the kitchen. Diane Dycus testified for the State as the only eyewitness. She stated that Harry had left the house around 10 p.m. to buy some liquor. Dycus had been drinking earlier, consuming half a pint of vodka. Dycus returned with defendant and Sager. The four sat in the kitchen, drinking and talking.
Sager, who was to drive defendant home, left to warm up the car. Diane then stated that defendant called her a "dirty bitch witch." Harry became mad and asked defendant to leave. She then stated that defendant swung his left arm and that Dycus blocked the swing with his arm. The block was such that defendant was knocked upon the kitchen table, breaking it. Harry went over to defendant and picked him up. The two separated, Dycus going to the doorway, defendant going to the sink.
Diane then heard defendant say, "I'm going to kill you, Dycus." She saw a knife in defendant's hand. Dycus was standing by the door, waiting for the defendant to leave. She then stated that defendant moved toward Dycus and stabbed him. Dycus did nothing to defend himself. Dycus died as a result of the wound.
Tony Dycus, Harry's son, next testified. He stated that while he was asleep that evening, he heard a crash coming from the kitchen. He rushed in and saw Harry on the floor. Defendant and Diane were struggling over the knife. Tony attempted to resuscitate his father, but was unsuccessful. The State further proved that Harry Dycus died as a result of severe internal bleeding, caused by a knife wound.
Defendant was the first defense witness. He stated that he, Sager and Dycus had discussed many topics at the Dycus home. Defendant then stated that the next thing he remembered doing was regaining consciousness. The kitchen was a disarray. Defendant was on the floor. Dycus was standing over him, watching him. Dycus had a menacing look on his face. Dycus' eyes followed him, never leaving. Defendant felt scared. He got up and grabbed a knife that was nearby. He started to leave, using the door that Dycus was near. Dycus reached for defendant's neck, and defendant stabbed him in the side.
Defendant then testified to many specific acts of violence upon him by Dycus. He stated that on many occasions Dycus would get angry and act violently, sometimes injuring defendant. Dycus' mood swings were even more severe when he drank. The defense then presented numerous witnesses that testified as to Dycus' reputation for violence and as to specific acts of violence by Dycus on defendant. These witnesses also stated that as Dycus drank, he became more violent.
The jury was given five murder instructions corresponding to the counts of the indictment. The jury also received an instruction on voluntary manslaughter. Guilty verdicts were returned on counts II and V of murder. Not guilty verdicts were returned on the others. Defendant was sentenced to 20 years in prison. He brings this appeal, citing three points of error.
• 1 The first issue defendant raises is that the verdicts finding him guilty of counts II and V are legally inconsistent with the not guilty verdicts on counts I and IV. As stated earlier, defendant was indicted in five counts for the murder of Harry Dycus. Counts I, II and III allege murder as defined in section 9-1(a)(1) of the Criminal Code of 1961. The remaining counts are derived from subparagraph (a)(2).
The pertinent statute reads:
"Sec. 9-1. * * * (a) A person who kills an individual without lawful justification commits murder if, in performing ...