People v. Allen
| Decision Date | 18 November 1941 |
| Docket Number | No. 26209.,26209. |
| Parties | PEOPLE v. ALLEN. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, Jackson County; Loyd W. Bradley, Judge.
Ed Allen was convicted of murder, and he brings error.
Reversed and remanded.Fletcher Lewis, of Chicago (Leslie A. Cranston, of Duquoin, of counsel), for plaintiff in error.
George F. Barrett, Atty. Gen., and Glenn O. Brown, State's Atty., of Carbondale (C. E. Wright, of Carbondale, of counsel), for defendant in error.
Plaintiff in error, Ed Allen, was indicted by the grand jury of Jackson county for the crime of killing and murdering on June 29, 1940, of one Lonnie Hill. He was found guilty of murder by a jury and sentenced to the penitentiary for a term of fourteen years. He prosecutes the writ of error to this court to review errors of law in the ruling upon evidence by the trial court, and in the giving of certain instructions claimed to be erroneous.
The evidence in the case is very conflicting. The testimony upon the part of the People tended to prove that on the evening of June 29, 1940, a number of people were in a tavern at the corner of Twelfth and Chestnut streets in the city of Murphysboro; that there was some disturbance in front of the tavern on the street; that a fight was started by plaintiff in error with the deceased, and that without any provocation the latter was shot, when he was at a distance of from five to fifteen feet, by plaintiff in error. On the other hand testimony was offered on behalf of plaintiff in error tending to show he was commissioned by the owner of the tavern to restrain boisterous conduct on the outside; that the deceased was using vile and vulgar language concerning the loss of a cap, and was admonished by plaintiff in error to refrain from the use of such language; that the deceased grew angry, drew a knife, opened it and cut at the plaintiff in error striking his person once and part of his clothes a second time; that before that time no assault had been made upon the deceased, and that plaintiff in error fired one shot and killed the deceased in necessary self-defense. There was also evidence tending to show the deceased had a general reputation of being a violent, dangerous and quarrelsome man. We will not go into the details of the evidence because no question of its weight is raised by the assignment of error.
Where evidence in a criminal case is conflicting in its nature it is highly essential for a proper consideration of the facts by a jury that it be correctly instructed. A number of instructions given on behalf of the people are assigned as error. The People's instruction No. 32 is as follows: ‘you are instructed that if the jury believe from the evidence beyond a reasonable doubt, that the defendant, Ed Allen, wilfully, maliciously, deliberately and intentionally shot and killed the deceased, Lonnie Hill, with a gun, as charged in the indictment, and if the jury further believe from the evidence, beyond a reasonable doubt, that such shooting and killing was not necessary, or apparently necessary to save his own life, or the life of anyone else, or to prevent him from receiving great bodily harm, then the jury should find the defendant guilty of murder as charged in the indictment.’
This type of instruction was condemned in People v. Clark, 368 Ill. 183, 13 N.E.2d 269, 270, wherein this court said: ‘The true test is what the defendant believed was necessary, acting as a reasonable man, not whether the jury believed from the evidence that it was necessary or apparently necessary.’ In that case we followed People v. Durand, 307 Ill. 611, 139 N.E. 78, 82, where an instruction in almost the identical language was given. In commenting upon it the court said: ‘The jury were told by the instruction that whether or not the defendant was justifiable under his plea of self-defense depended upon whether or not they believed, beyond a reasonable doubt, from the evidence, that it was necessary or apparently necessary in order to save his own life,’ and it was there pointed out that it is not a question of whether or not the evidence shows the danger to be real, but as to what the defendant honestly believed, as a reasonable man, at the time of the commission of the crime. Examination of People's instruction No. 32 shows that it incorporates the statement condemned in the foregoing cases, which informs the jury that if it, the jury, believe that the plaintiff in error killed the deceased, and if it, the jury, believe the killing was not necessary, or apparently necessary, then it is the duty of the jury to convict. As we have repeatedly pointed out, the test is not whether the jury believed the facts justified the slaying of the deceased in self-defense, but whether under the evidence the defendant honestly believed he was in such danger, or apparent danger, as required the killing of his opponent. The giving of instruction No. 6 was error.
The People's instruction No. 10 was as follows: This instruction in the same form has also been condemned as error by this court in People v. Johnson, 317 Ill. 430, 148 N.E. 255, which follows People v. Prall, 314 Ill. 518, 145 N.E. 610,People v. Mooney, 303 Ill. 469, 135 N.E. 776, and People v. Davis, 300 Ill. 226, 133 N.E. 320. An instruction embodying the same principle, but not in the exact language of instruction No. 10, has been held reversible error in People v. Rukavina, 338 Ill. 128, 170 N.E. 240, People v. Rongetti, 331 Ill. 581, 163 N.E. 373, and People v. Flynn, Ill.Sup., 38 N.E.2d 49. The giving of this instruction was error because, while every fact is not required to be so proved, the essential facts to constitute the crime must be so established as to be beyond reasonable doubt, and this instruction does not...
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