People v. Sulton, Gen. No. 53214

• Court: Appellate Court of Illinois
• Writing for the Court: BURMAN
• Citation: People v. Sulton, 266 N.E.2d 351, 130 Ill.App.2d 1098 (Ill. App. 1970)
• Decision Date: 07 December 1970
• Docket Number: Gen. No. 53214
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Allen SULTON, Defendant-Appellant.

Page 351

266 N.E.2d 351

130 Ill.App.2d 1098

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Allen SULTON, Defendant-Appellant.

Gen. No. 53214.

Appellate Court of Illinois, First District, First Division.

Dec. 7, 1970.

Edward V. Hanrahan, State's Atty., County of Cook, Chicago, for plaintiff-appellee; Robert A. Novelle, Roger S. Matelski, Asst. State's Attys., Chicago, of counsel.

Gerald W. Getty, Public Defender of Cook County, Chicago, for defendant-appellant.

BURMAN, Presiding Justice.

The defendant, Allen Sulton, was indicted for the murder of Willie J. Riley. He was tried before a jury and found guilty of manslaughter. He was sentenced to serve not less than seven nor more than ten years in the Illinois State Penitentiary.

The defendant contends, on appeal, (1) that it was error to submit an instruction to the jury defining voluntary manslaughter because no evidence was introduced sufficient to support a verdict finding the defendant guilty of that crime, (2) that the verdict returned by the jury was defective and insufficient because it specified only that he was guilty of 'manslaughter', (3) that the State knowingly permitted false testimony to remain uncorrected, (4) that he was unable to adequately prepare his defense because the State withheld its list of witnesses until the day of trial, (5) that he was represented by incompetent counsel, and (6) that he was not proven guilty beyond a reasonable doubt.

We first consider the defendant's contention that no evidence was introduced at trial sufficient to support a verdict finding him guilty of voluntary manslaughter. Murder and manslaughter are kindred crimes. People v. Gajda, 87 Ill.App.2d 316, 232 N.E.2d 49; the unlawful killing of a human being is the major factor which characterizes both crimes. United States v. Wiltberger, 5 Wheat. 76, 18 U.S. 76, 5 L.Ed. 37. Section 9--2 of [130 Ill.App.2d 1101] the Criminal Code of 1961 (Ill.Rev.Stat.1965, Ch. 38, par. 9--2) defines voluntary manslaughter and provides:

9--2. § 9--2. Voluntary Manslaughter.) (a) A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:

(1) The individual killed, or

(2) Another whom the offender endeavors to kill, but he negligently or accidentally causes the death of the individual killed.

Serious provocation is conduct sufficient to excite an intense passion in a reasonable person.

(b) A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but his belief is unreasonable.

Where there is any evidence in the record which, if believed by the jury, would reduce a charge of murder to manslaughter, an instruction defining that crime should be given. People v. Harris, 8 Ill.2d 431, 134 N.E.2d 315; but where the evidence admits of but one of two conclusions, either that the defendant is guilty of murder or is innocent, the giving of an instruction and form verdict on manslaughter is improper. People v. Newman, 360 Ill. 226, 195 N.E. 645.

Initially we must point out that the instruction submitted to the jury dealing with voluntary manslaughter was tendered by the defendant. We have reviewed the entire record and conclude that there was sufficient evidence upon which the jury could find the defendant guilty of voluntary manslaughter.

The evidence reveals that the defendant had given the deceased, Willie Riley, a home in his apartment and that various items belonging to him had been burglarized. James O'Toole, a detective with the Chicago Police Department, testified that the defendant informed him that Willie Riley had committed the burglary and that the defendant had notified the police on two separate occasions of unsuccessful attempts to apprehend Riley. On one of those occasions, according to Stanford Jones, Riley admitted to the defendant that he was the perpetrator of the crime and that the stolen articles were at his brother's home. At approximately 9:45 P.M. on December 18, 1966, Willie Riley was shot and killed. The jury found the defendant guilty of the homicide. The jury could have found from these facts that the killing resulted from a sudden, violent, and irresistible passion which overcame the defendant upon apprehending Riley, the ungrateful guest and admitted burglar. Since there was some evidence which could sustain a verdict finding the defendant guilty of voluntary manslaughter, it was proper to submit an instruction on voluntary manslaughter to the jury.

In People v. Hunter, 365 Ill. 618, 7 N.E.2d 444, People v. Newman, 360 Ill. 226, 195 N.E. 645, and People v. McMurry, 64 Ill.App.2d 248, 212 N.E.2d 7 cited by the defendant, there was no evidence that the defendants were acting under intense passion caused by the provocation contemplated by the statute. These cases are, therefore, inapplicable on their facts.

The defendant next contends that the verdict returned by the jury was defective and insufficient because it found him guilty of a non-existent crime. The Criminal Code of 1961, defines the crimes of voluntary manslaughter and involuntary manslaughter (Ill.Rev.Stat.1965, Ch. 38, pars. 9--2 and 9--3), but it does not define the crime of 'manslaughter' the crime of which the defendant was convicted. The test of the sufficiency of a verdict is whether the jury's intention can be ascertained with reasonable certainty from the language used. People v. Orlando, 380 Ill. 107, 43 N.E.2d 677. In the case at bar, the defendant was indicted for murder. The charge f voluntary manslaughter is embraced in the charge of murder; one who is indicted for murder may be convicted upon that indictment of voluntary manslaughter. People v. Davis, 82 Ill.App.2d 282, 226 N.E.2d 688. The defendant submitted and the Court gave an instruction defining voluntary manslaughter which was the only instruction given to the jury relating to manslaughter. There is ample evidence indicating that the defendant committed voluntary manslaughter, but there is no evidence that he committed involuntary manslaughter. It is clear that the jury based its verdict upon the evidence and instructions and returned the verdict on the only suitable form submitted.

The defendant next contends, that the State knowingly permitted false testimony to remain uncorrected. Stanford Jones, a witness for the State, who had been indicted on three charges of forgery and awaiting trial, testified that he was not offered any leniency or other consideration in return for his testimony. At the defendant's sentencing it was brought out that the three forgery indictments against Jones had been reduced to charges of theft and that Jones had pleaded guilty and received a sentence of ninety days, considered served. The defendant argues that the plea entered by Jones and the light sentence which he received refute his testimony that he was not offered leniency and indicates that the State knowingly permitted him to testify falsely. This bare assertion without any proof is insufficient to sustain the charge that Jones lied or that the State permitted his false testimony to stand uncorrected.

The defendant further contends that he was deprived of due process because the State did not provide him with a list of witnesses until the day before the trial. The defendant's attorney on February 21, 1967, requested a list of witnesses from the State. On April 10, 1967, the day the cause was set for trial before Judge James Crosson, the State tendered to the defendant's attorney the list and moved for leave to file it with the Court. The defendant's attorney objected to the late tender of the witness list. The Assistant State's Attorney apologized for the inadvertent delay, expressed a willingness to have the matter continued on the motion of the State until the defendant's attorney had an opportunity to study the witness list, and offered the defendant's attorney any assistance necessary to contact the witnesses. The cause was then transferred to the Chief Justice, reassigned, and set for trial on the next day. When the case was called on April 11, 1967, before Judge Archibald Carey, Jr., the parties answered that they were ready for trial and proceeded. There is no evidence in the record which indicates that either the defendant or his attorney objected to the commencement of the trial on the grounds that they were surprised by the identities of those who were expected to be called as witnesses or that they were prejudiced in the preparation of their defense by the late tender of the witness list. See People v. Milani, 39 Ill.2d 22 at 30, 233 N.E.2d 398 at 403. No request was made for a continuance. On the state of this record it is presumed that when the defendant and his attorney answered ready to proceed to trial, they were ready and were demanding an immediate trial. People v. Jones, 9 Ill.2d 481, 138 N.E.2d 522. In the absence of a showing in the record that the defendant either requested or was refused additional time in which to prepare his case, a reviewing court will not remand for new trial on the ground that the defendant did not have adequate opportunity to prepare his defense. People v. Coleman, 45 Ill.2d 466, 259 N.E.2d 269.

Complaint is next made that the defendant was prejudiced and denied a fair trial because he was represented by incompetent and ineffective counsel. We find no merit to this contention. When, as in this case, a defendant is represented by counsel of his own choice, an allegation of incompetence of counsel presents a constitutional question only if the representation reduces the court proceedings to a farce or sham or was of such a law caliber as to amount to no representation at all. People v. Bliss, 44 Ill.2d 363...