People v. Johnson

• Decision Date: 26 September 1968
• Docket Number: Gen. No. 51678
• Citation: 100 Ill.App.2d 13,241 N.E.2d 584
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Gordon JOHNSON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 584

241 N.E.2d 584

100 Ill.App.2d 13

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Gordon JOHNSON, Defendant-Appellant.

Gen. No. 51678.

Appellate Court of Illinois, First District, Third Division.

Sept. 26, 1968.

Gerald W. Getty, Norman W. Fishman, James J. Doherty, Chicago, for defendant-appellant.

John J. Stamos, Elmore C. Kissane, Asst. State's Atty., James Truschke, Chicago, for plaintiff-appellee.

DEMPSEY, Presiding Justice.

The defendant, Gordon Johnson, was indicted for murder. He was tried by a jury, found guilty of voluntary manslaughter and was sentenced to a term of not less than five nor more than ten years in the penitentiary.

Johnson and the deceased, George Young, were friends. On the evening of April 3, 1965, Johnson, Young and James Lee, Jr., were at the apartment of Lee's sister. Also present was Catherine Johnson (no relation to the defendant). Johnson and Young, both of whom had been drinking heavily, began to quarrel. The quarrel grew loud and Young punched Johnson. Johnson grabbed a butcher knife from a table and Young backed away. Lee took Johnson into another room and urged him to make up with his friend. Johnson agreed to do so and a few minutes later he asked Young to step outside in the hallway to talk.

A few minutes after this, Lee and Catherine Johnson heard a 'thumping' or 'banging' noise. They looked out the window and saw Johnson kicking Young who was lying near the bottom of the concrete front steps. They ran outside. Young was on the walk and Johnson was kicking him in the head. Young's face was bleeding and he appeared to be unconscious. Lee tried to stop Johnson but each time he did Johnson threw him off, saying that he was going to kill Young. Johnson dragged Young a short distance and kicked him two more times in the head. Johnson then returned to the apartment and exchanged his trousers, which had been torn in the fight, for a pair furnished by Lee. The police were called. Young was taken to a hospital where he was pronounced dead.

At his trial, Johnson explained that he apologized to Young in the hallway but that Young responded by striking him twice, pushing him against a wall and knocking him down. They struggled and Johnson pushed Young out the door onto the front porch. There he struck Young in the stomach, making him crouch over, then struck him again and knocked him off the porch. Young fell down the steps and hit his head on the sidewalk below. Johnson testified that the struggle continued when he came down the stairs and Young grabbed him about the legs and tried to pull him down. He said he may have kicked Young but claimed that any kick about the head was unintentional as he was merely kicking his legs to get free. After a while Young got up and they continued to fight. Johnson broke away and saw Young's head strike the rail of a fence. Johnson then placed him against the fence, figuring, he said, that Young would eventually get up and go home. At this time James Lee grabbed Johnson and urged him to return to the apartment, which he did.

A physician, who testified for the defendant, said that in his opinion Young's death and the injuries he received could have resulted from his falling down the stone steps and striking his head against a hard surface. He also said that the death and injuries could not have been produced by kicking. On the other hand, the coroner's pathologist, testifying for the State, said the death was caused by violence and could not have come from just a fall. He added that only a fall down three or four hundred steps could have produced Young's injuries. These he described as multiple head lacerations that extended to the bone; part of the scalp had been torn away from both the left and right sides of his head; his face had many bruises and contusions; his eyes were swollen and blackened and an examination of his scalp, skull and brain disclosed extensive hemorrhages.

The only issue to be determined in this appeal is the propriety of the following instruction which was refused by the court:

'The court instructs the jury that if you believe from the evidence in this case that the defendant was engaged in a lawful act without any intention of killing anyone but unfortunately, killed the deceased, at the time and place charged in the indictment, the killing would be excusable homicide and your verdict should be not guilty.'

Johnson argues that he was entitled to this instruction because it was the only one tendered which embodied his theory or the case--death by misadventure. He quotes this definition of misadventure: 'Homicide 'by misadventure' occurs where a man, doing a lawful act, without any intention of hurt, unfortunately kills another.' Black, Law Dictionary (4th ed. 1951). He also quotes the following passage from People v. Lefler, 38 Ill.2d 216, 230 N.E.2d 827 (1967):

'(T)he court refused an instruction to the effect that if the deceased met her death by misadventure without any conscious disregard by the defendant for her safety, the jury should find the defendant not guilty. * * * The defendant and entitled to an instruction on his theory of the case and the court should have given this instruction.'

In equating the above quotations with the refused instruction the defendant overlooks the words 'without any intention of hurt' in the first quotation and the words 'without conscious disregard * * * for her safety' in the second. These words differ greatly in degree from those in the instruction: 'without any intention of killing anyone.' The instruction stated that if...