dissenting:
I do not agree with the conclusions announced by my colleagues which would result in a reversal without remandment. I conclude that this cause should be remanded for the reasons hereinafter stated.
On appeal in this court, defendant contends that there was no evidence to show the mental state of recklessness which is an essential element of the crime of involuntary manslaughter for which he was convicted. He argues that the testimony presented interpreted in any way, shows an intentional killing, i.e., either murder or voluntary manslaughter or justifiable self-defense and that there was nothing which suggests recklessness. I agree that self-defense normally presupposes the intentional use of force in defense of one’s person, and that a conviction of involuntary manslaughter would thus be inconsistent if that was the sole evidence (People v. Mitchell (1st Dist. 1973), 12 Ill. App. 3d 960, 965, 299 N.E.2d 472; People v. Davis (1st Dist. 1967), 82 Ill. App. 2d 282, 287, 226 N.E.2d 688). Where, however, as in this case, there is a question as to whether the killing was in self-defense, and there was evidence from which the trier of fact could find recklessness, the fact that self-defense is pleaded and contended for by defendant does not preclude a verdict of involuntary manslaughter. People v. Taylor (1973), 54 Ill. 2d 558, 561, 301 N.E.2d 273.
In the instant case, the testimony favorable to defendant was that Thompson attacked him with a knife and that he left the premises; that he thereafter obtained his gun from his automobile and returned to the trailer and shot Thompson after Thompson again attacked him. While it would appear from this testimony that Thompson was the initial aggressor and also had again started the struggle when Singleton returned with the pistol, the jury could have concluded that Singleton’s action in returning to the trailer with the loaded pistol, after having once retreated to safety, was reckless. Certainly, the brandishing of a loaded gun can be considered reckless, particularly when several people are in the immediate vicinity and also in view of the situation which existed in the trailer with Thompson being armed with a knife and in an agitated mental state. (People v. Meyer (3d Dist. 1975), 30 Ill. App. 3d 673, 677, 332 N.E.2d 606; People v. Tarpley (4th Dist. 1972), 8 Ill. App. 3d 960, 962, 291 N.E.2d 262; People v. Bembroy (1st Dist. 1972), 4 Ill. App. 3d 522, 526, 281 N.E.2d 389.) I recognize that apparently similar circumstances in another case prompted that court to conclude that the homicide was either murder or justifiable self-defense (People v. Hall (1st Dist. 1969), 118 Ill. App. 2d 160, 254 N.E.2d 793). I believe that the better view is to aUow the intermediate choice of reckless conduct when there is evidence such as presented in this case. I conclude, therefore, that there was sufficient evidence to support the verdict of involuntary manslaughter and instructions on that issue.
With respect to instructions, defendant first notes that the definition of “reckless” conduct contained in Illinois Pattern Jury Instruction— Criminal No. 5.01, was not given to the jury foUowing instructions pertaining to involuntary manslaughter (IPI — Criminal Nos. 7.07, 7.08). This was contrary to the normal directions suggested in Committee Comments with respect to IPI — Criminal No. 5.01.1 note that defendant also did not tender a definition of recklessness. Normally, a failure to tender an instruction precludes the party from complaining on appeal that no such instruction was given. (People v. Grashoff (3d Dist. 1974), 21 Ill. App. 3d 282, 315 N.E.2d 209; People v. Holt (3d Dist. 1972), 7 Ill. App. 3d 646, 652-53, 288 N.E.2d 245.) Defendant contends that he argued against submitting the question of involuntary manslaughter to the jury and thus could not be said to have waived his objection to the faüure to include a definition of recklessness. The record, however, shows that defendant did tender an alternative instruction on involuntary manslaughter. He could also have added thereto a definition of “reckless” conduct as set forth in IPI — Criminal No. 5.01, if he chose, but he did not do so.
I also recognize that waiver by failure to tender an instruction would not preclude the court from considering error in instructions where fundamental fairness in the interests of justice so requires. (People v. Davis (1st Dist. 1966), 74 Ill. App. 2d 450, 221 N.E.2d 63; Ill. Rev. Stat. 1973, ch. 110A, par. 415(c).) A defendant, however, in such cases, must show that the error was substantial and prejudicial to him. (People v. Wright (3d Dist. 1974), 24 Ill. App. 3d 536, 540, 321 N.E.2d 52.) In absence of a specific definition, courts have held that the word “reckless” is so sufficiently a weU-defined term in everyday use as to render harmless, in most circumstances, the failure to instruct the jury with IPI — Criminal 5.01, in an involuntary manslaughter case. (People v. Brown (2d Dist. 1973), 9 Ill. App. 3d 730, 293 N.E.2d 1; People v. Maldonado (1st Dist. 1971), 3 Ill. App. 3d 216, 278 N.E.2d 225.) I believe that the omission to include a definition of “reckless” would be harmless error in the instant case.
I do find, however, that another argument made by defendant, which relates to instructions, is more substantial, and considered with an error which we believe the court committed in exclusion of certain evidence, constitutes a basis for reversal and a new trial in this cause. Defendant’s contention is that the jury was misled by the giving of IPI — Criminal No. 7.08 (issue instruction for involuntary manslaughter), without including the proposition that the State had to prove the absence of legal justification beyond a reasonable doubt. Certainly, where self-defense or other justification is raised by defendant, the State is required to disprove that claim as part of its case. It was, therefore, necessary to instruct the jury according to IPI — Criminal No. 25.05 which includes the obligation on the State to negate the legal justification raised as a defense, as one of the issues which the State must prove. In the cause before us, IPI— Criminal No. 25.05 was followed as to the issues instructions on murder and both forms of voluntary manslaughter, but not as to involuntary manslaughter. Defendant contends that the jury might have been misled to the prejudice of defendant into believing that self-defense was not applicable to a charge of involuntary manslaughter.
Clearly self-defense is applicable to a charge of involuntary manslaughter (People v. Hunter (1937), 365 Ill. 618, 624, 7 N.E.2d 444). The State apparently does not argue this issue. The State, however, does contend that the failure to give a proper issues instruction was remedied by giving an instruction on legal justification for the use of force by a defendant (IPI — Criminal No. 24.06), so that the instructions as a whole fully informed the jury as to the applicable law. On the basis of the precedents in this State, however, I do not believe that this is adequate.
In People v. Wright (3d Dist. 1974), 24 Ill. App. 3d 536, 541, 321 N.E.2d 52, we held that it was error to give the jury two issues instructions on murder, i.e., IPI — Criminal No. 7.02, which does not include the issue of self-defense, and IPI — Criminal No. 25.05, which does. Although the State would distinguish that case, since there were two conflicting instructions there and only one given here, it is apparent that the jury was inadequately instructed on this issue. I do not believe that the confusion on the part of the jury would be any less here than in the Wright case to which we have referred, nor do I believe that the incomplete instructions in such situation would be any less prejudicial to the defendant. Another court has recently come to this conclusion, holding that the giving of IPI— Criminal No. 24.06 is not enough to overcome the failure to include the issue of self-defense in the issues instruction, as outlined in IPI — Criminal No. 25.05. (See People v. Wright (1st Dist. 1975), 32 Ill. App. 3d 736, 744, 336 N.E.2d 18. This is not the same as the previous Wright case but involves a different defendant.) I agree with the contention of defendant on this issue and believe that the court was in error in instructing on this issue, particularly when the court also improperly excluded evidence as we will later outline. On the instruction issue, however, I note that defendant tendered an instruction based on IPI — Criminal 25.05 as an alternative to his claim that involuntary manslaughter should not be before the jury. While the first part of the tendered instruction was not verbatim from the portion of IPI — Criminal 7.08, which was needed to fill in the blanks in IPI — Criminal 25.05 (and thus not in proper form and properly refused by the court), it was sufficient to preserve the objection on appeal in this court, that self-defense is applicable to an involuntary manslaughter charge and the State has the burden of negating that defense when raised. The latter part of the instruction suggested by defense counsel was patterned on IPI — Criminal 25.05.
Defendant also complains of error in the exclusion of certain offered testimony which related to previous threats and acts of violence on the part of Albert Thompson, directed towards defendant, Thompson’s wife and neighbor, John Thurman. Evidence was also tendered to show that defendant had knowledge of the fact that Thompson was on parole after serving time for a murder conviction. The testimony which was offered would have shown that on April 4, 1974, Thompson beat his wife, who was confined to a wheelchair. She was beaten so severely that she was taken to a hospital. Two days thereafter, defendant discovered the incident and reported it to police. As a response to this action by defendant, Thompson picked up a hammer and threatened to kill defendant. The following day, defendant took Mrs. Thompson home from the hospital and asked the police for protection. Defendant later learned that Thompson was on parole for a murder conviction. Defendant offered to show that within three months preceding Thompson’s death, Thompson had threatened the life of John Thurman, his neighbor, with a knife. It was stated that Thurman also knew of several incidents, at least one involving Singleton, where Thompson had been argumentative and violent. The trial court did not allow the testimony as tending to show that Thompson was the aggressor in the struggle that ended in his death. The court found that it was too remote in time in view of the general reputation testimony given by Mrs. Thompson, and also by reason of the fact that there were eyewitness accounts of the events immediately preceding the shooting from Mrs. Thompson and Singleton. Mrs. Thompson had testified that her husband had a good reputation for being peaceful and law-abiding, while defendant and Thurman testified to the contrary. Defendant was, however, permitted to testify that within a month before the fatal incident, Thompson threatened to kill him with a knife and a gun.
Ordinarily, a defendant claiming self-defense, in response to a homicide charge, may show specific acts of violence and threats by the deceased. (People v. Adams (1962), 25 Ill. 2d 568, 572, 185 N.E.2d 676; McCormick on Evidence §193, at 461-62 (2d ed. 1972).) It is also determined that a defendant should be allowed substantial latitude in making such showing. (People v. Stombaugh (1972), 52 Ill. 2d 130, 139, 284 N.E.2d 640.) I believe that the testimony tendered, with respect to threats and actions of Thompson, were not in fact too remote in time, since they were within 2 or 3 months of the actual shooting. The testimony of events more remote in time have been admitted in other cases (People v. Stepheny (1970), 46 Ill. 2d 153, 263 N.E.2d 83; People v. Adams (1962), 25 Ill. 2d 568, 185 N.E.2d 676). Evidence that Singleton and Thompson were apparently friendly and socialized, in and of itself, did not justify exclusion of evidence of threats or ill wiU between the parties.
The State argues that any error in exclusion of the evidence was harmless because substantially similar testimony was admitted. The evidence with respect to Thompson’s recent attack on his wife appears to have been particularly significant, in view of Singleton’s account that he re-entered the trailer with his pistol thinking that the women were in danger. Singleton had a right to come to the defense of others if circumstances so warranted. (Ill. Rev. Stat. 1973, ch. 38, par. 7 — 1.) Since the jury apparently found defendant’s action in returning to the trailer to be reckless, the exclusion of the testimony referred to, which would tend to show justification of his return to the trailer, was prejudicial. By reason of the improper exclusion of testimony referred to, combined with the error in instructing the jury, I believe it is necessary to remand the case for a new trial.
For the reasons stated, I believe the judgment of the Circuit Court of Marshall County should be reversed and this cause should be remanded for a new trial.