The PEOPLE of the State of Illinois, Defendant in Error,
Leroy WALKER, Plaintiff in Error
Appellate Court of Illinois, First District, Fourth Division
55 Ill.App.2d 292,  204 N.E.2d 594 (1965)

  DRUCKER, Justice.

  Defendant appeals from a conviction of murder and the sentence of fourteen years, after a bench trial. He urges that he was not proved guilty beyond a reasonable doubt but that in any event he was guilty of manslaughter and not murder.

  The testimony of Albert McClinton, the State's main witness, reveals that on the night of June 2, 1961, he, Claude Jenkins, a Mrs. Brown and the defendant were drinking and talking on a porch at 3310 South Indiana Avenue in Chicago; that a man he did not know, John Stenneth (hereinafter referred to as the deceased), approached and demanded that they gamble; that when he was refused the drew a knife and started [p. 294] toward them; that McClinton grabbed two bottles and told deceased he would hit him if 'you comes up on me with that knife'; that defendant and Jenkins told McClinton to come back but that every time he turned deceased ran up and tried to cut him; that defendant and Jenkins came up and backed deceased down the street; that deceased was cutting at both of them but that he did not see either defendant or Jenkins get cut.  McClinton further testified that defendant threw a brick which hit deceased and knocked him down; that all three ran up and stood around the deceased; that defendant picked up deceased's hand with the knife in it and said 'he would cut his throat with his own knife'; that he cut the deceased and walked away. McClinton then said 'You shouldn't have cut the man.  I told you not to cut the man, I told you not to cut the man' and defendant answered:  'You told me not to cut the man.  He cut me.'

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  Defendant's main contention is that, under the law, if a killing occurs during the course of a fight and before the blood of the killer has had time to cool, the offense is not murder but voluntary manslaughter.  In support of his view, defendant cites People v. Bissett, 246 Ill. 516, 92 N.E. 949:
'* * * It is indispensible, before one can be convicted of the crime of murder, that the act be done with malice aforethought, either express or implied.  Here the element of malice, under the case as made by the people, was wholly wanting.  Under our statute the crime committed could not have been more than manslaughter, which, to use the language of the statute, 'is the unlawful killing of a human being without malice, express or implied, and without any mixture of deliberation whatever.  It must be voluntary, upon a sudden heat of passion, caused by a provocation apparently sufficient to make the passion irresistible.  [p. 299] * * * In cases of voluntary manslaughter, there must be a serious and highly provoking injury inflicted upon the person killing, sufficient to excite an irresistible passion in a reasonable person, or an attempt by the person killed to commit a serious personal injury on the person killing.  The killing must be the result of that sudden, violent impulse of passion supposed to be irresistible; for if there should appear to have been an interval between the assault or provocation given, and the killing, sufficient for the voice of reason and humanity to be heard, the killing shall be attributed to deliberate revenge, and punished as murder.' [n. 2]  * * * That Russell was inflicting upon plaintiff in error a highly provoking injury at the time he voluntarily seized him and demanded he turn over to him the contents of his pocket is clearly shown by the testimony of every witness to the assault. That from the time the affray began until Russell was shot and killed there was not the slightest pause in the activities of the two men engaged, and not the slightest opportunity offered plaintiff in error to deliberate or reason in regard to the matter, is clearly shown.  Under this state of facts the plaintiff in error, if guilty at all, is guilty of no graver offense than that of manslaughter, and upon motion for a new trial the verdict of the jury should have been set aside.'  (246 Ill. at 521-522, 92 N.E. at 951) (Emphasis supplied.)

2.  A different definition of the crime is contained in the Criminal Code of 1961, but the Code did not go into effect until 1962 and the offense in the instant case was committed in 1961.
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 In the instant case, the deceased was an aggressive, intoxicated belligerent who menaced strangers because they would not gamble with him. According to every witness he kept swinging his knife at one and all. Defendant went to McClinton's aid; defendant had no words with deceased whom he had never seen before; when he was cut by the deceased, he knocked him down by striking him with a brick.  It is undisputed that defendant never had a knife. He grabbed deceased's hand with the knife in it and stabbed deceased with the knife in deceased's hand.  The affray was a continuous one.  It lasted six minutes according to defendant.  McClinton testified that:
'I don't know exactly how much time elapsed between the time I first saw this man and when Leroy cut him with his own knife.  Everything happened pretty fast.  I guess it wasn't as long as 15 minutes.  It all happened pretty fast.'

  [p. 302] In his summation in the trial court, the Assistant State's Attorney said:
'* * *  I think the defendant used too much force in attempting to restrain the attack of the deceased.  And I think that after he was attacked and was cut by the deceased, that he became impatient and that is when he performed the stabbing on the deceased.'

  We believe that enough time did not elapse for the voice of reason to return to 'cool the blood' of defendant, and that under the circumstances defendant believed or was justified in believing that he was in great danger.  People v. Bartley, supra, 263 Ill. page 77, 104 N.E. 1057.  Therefore, the finding of guilty of murder must be reversed.

  However, it is unquestioned that defendant killed the deceased.  It is also clear that the killing was not in self-defense.

 * * *

  We find that under the evidence defendant was guilty of voluntary manslaughter and remand the cause to the Circuit Court with directions to enter a finding of guilty of voluntary manslaughter and to impose a sentence for that crime appropriate to the facts and circumstances of this cause and to whatever other matters in aggravation or mitigagtion may be made available to the trial court.

  Reversed and remanded with directions.