{ "id": 3111774, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. PATRICK FAUSZ, Appellee", "name_abbreviation": "People v. Fausz", "decision_date": "1983-03-25", "docket_number": "No. 56940", "first_page": "535", "last_page": "541", "citations": [ { "type": "official", "cite": "95 Ill. 2d 535" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "15 Ill. App. 3d 756", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2460992 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/15/0756-01" ] }, { "cite": "16 Ill. App. 3d 553", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2523515 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/ill-app-3d/16/0553-01" ] }, { "cite": "17 Ill. App. 3d 467", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2510710 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/ill-app-3d/17/0467-01" ] }, { "cite": "11 Ill. App. 3d 752", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2929131 ], "pin_cites": [ { "page": "756" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/11/0752-01" ] }, { "cite": "360 Ill. 226", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2599491 ], "pin_cites": [ { "page": "231-32" } ], "opinion_index": 0, "case_paths": [ "/ill/360/0226-01" ] }, { "cite": "387 Ill. 616", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2497176 ], "weight": 2, "pin_cites": [ { "page": "620" } ], "opinion_index": 0, "case_paths": [ "/ill/387/0616-01" ] }, { "cite": "52 Ill. 2d 7", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5393840 ], "weight": 2, "year": 1944, "pin_cites": [ { "page": "11" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/52/0007-01" ] }, { "cite": "37 Ill. App. 3d 1050", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2715128 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/37/1050-01" ] }, { "cite": "38 Ill. 2d 331", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2860162 ], "year": 1976, "pin_cites": [ { "page": "335-36" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/38/0331-01" ] }, { "cite": "107 Ill. App. 3d 558", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3024582 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/107/0558-01" ] } ], "analysis": { "cardinality": 569, "char_count": 10269, "ocr_confidence": 0.742, "pagerank": { "raw": 3.3661341734236537e-07, "percentile": 0.8755489219641763 }, "sha256": "bd533773fcb2b844530fd3c1a4c62fac65b0db9e610c73553d52704db53f1b98", "simhash": "1:a2837ac872af2032", "word_count": 1662 }, "last_updated": "2023-07-14T19:06:26.298041+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. PATRICK FAUSZ, Appellee." ], "opinions": [ { "text": "JUSTICE MORAN\ndelivered the opinion of the court:\nDefendant, Patrick Fausz, was charged by information with the murder of Michael Lux and the attempted murder of James D. Weber. A jury in the circuit court of Monroe County found defendant not guilty of the offenses of murder, attempted murder and involuntary manslaughter, but convicted him of the offense of voluntary manslaughter. The trial court entered a judgment of guilty of voluntary manslaughter and sentenced defendant to a three-year prison term. The appellate court reversed, finding the evidence failed to establish the defendant\u2019s guilt of voluntary manslaughter. (107 Ill. App. 3d 558.) The appellate court also refused to reduce the degree of the offense to involuntary manslaughter under Supreme Court Rule 615(b)(3) (73 Ill. 2d R. 615(b)(3)) because the jury had specifically acquitted defendant of that offense. We allowed the State leave to appeal.\nThe State contends that the appellate court erred by-reversing defendant\u2019s conviction of voluntary manslaughter.\nEarly in the evening of September 3, 1980, Lux, Weber, and Rodney Godier commenced drinking. At approximately 10:30 p.m., they arrived at a tavern owned and operated by defendant and continued drinking. They overheard defendant tell a patron, Joe Benton, that he was placing two bottles of whiskey, which he had previously borrowed, in Benton\u2019s pickup truck. One of the three allegedly \u201cteased\u201d defendant, suggesting he put the whiskey in Weber\u2019s car instead of Benton\u2019s truck.\nAround midnight the three men left the tavern but loitered in the parking lot. Defendant became suspicious and watched them from the door. A tavern patron went out to the parking lot and positioned himself behind Benton\u2019s pickup truck. At one point, Weber approached the truck, but the patron confronted him and Weber walked away.\nThe trio then got into Weber\u2019s car, backed down the road about 200-300 feet north of the tavern, parked and smoked marijuana for about a half hour. Afterward, Weber drove slowly past the tavern with the lights off and parked in the road just south of the tavern. Weber and Lux then got out of the car and relieved themselves.\nAt this point, there is some conflict in the testimony. Weber testified defendant came out of the tavern with a pistol, told him and Lux to leave the tavern premises and not return, and then fired four shots. Upon reaching the car, Lux got in holding his back, and started bleeding from his mouth. Weber then sped off. After driving a few miles, Weber saw a pursuing vehicle in his rear-view mirror and as it approached his car, he heard five or six shots fired. Subsequently, Weber drove Lux to a hospital, where Lux was pronounced dead. An autopsy revealed Lux\u2019 death resulted from a gunshot wound in the back.\nDefendant testified that he became suspicious when he saw Weber\u2019s car drive slowly past the tavern with the lights off and then stop in the middle of the road. He obtained a pistol, kept on the premises for protection, and went out behind his automobile in the parking lot. He observed Weber approach Benton\u2019s truck and told Weber that all of them should leave and not come back. Weber moved toward defendant but stopped when defendant advised him he had a gun. Weber walked back to his car and defendant went back into the tavern.\nShortly thereafter, defendant observed Lux near Benton\u2019s truck. He again got his gun and went out to confront Lux. Lux ran toward Weber\u2019s car parked in the road. Defendant, thinking Lux had taken the whiskey bottles, told Lux to stop. Lux kept running. Defendant fired a shot into the air and then, in order to scare Lux into stopping, aimed his pistol over Lux\u2019 head and fired a second shot. He then watched Weber\u2019s car speed off.\nDefendant and another tavern patron, Joe Falkner, pursued them in Falkner\u2019s car. When they drew near to Weber\u2019s car, defendant fired another shot in the direction of Weber\u2019s car. It struck the left front fender. Shortly thereafter, Falkner and defendant ceased their pursuit.\nAt trial, the deputy who arrested defendant testified defendant appeared shocked and surprised that anyone had been hurt during the incident. Defendant testified he fired the pistol only to scare Lux and the others in order to get them to stop. He stated he had no intention of hurting anyone and that he never thought he had a right to shoot any of the three individuals. He maintained the shooting of Lux was accidental.\nDuring the conference on jury instructions, the State tendered a voluntary-manslaughter instruction. Defendant objected, contending there was no evidence suggesting the defendant thought he was justified in killing the victim. In response, the State argued that there was testimony that defendant fired his pistol to protect the two bottles of whiskey in Benton\u2019s truck and that this was sufficient provocation to warrant a voluntary-manslaughter instruction. The trial court granted the State\u2019s request and allowed a voluntary-manslaughter instruction.\nA person commits voluntary manslaughter if he kills an individual without lawful justification under a sudden and intense passion resulting from serious provocation, or if he intentionally or knowingly kills an individual believing the circumstances justify or exonerate the killing, but his belief is unreasonable. (Ill. Rev. Stat. 1979, ch. 38, par. 9 \u2014 2.) \u201cThe only categories of serious provocation which have been recognized are: \u2018substantial physical injury or assault, mutual quarrel or combat, illegal arrest, and adultery with the offender\u2019s spouse; but not mere words or gestures or trespass to property.\u2019 [Citations.]\u201d (Emphasis added.) (People v. Crews (1967), 38 Ill. 2d 331, 335-36. See People v. Free (1976), 37 Ill. App. 3d 1050.) The appellate court in the instant case found no evidence of \u201cheat of passion\u201d or \u201cunreasonable belief\u201d to support a voluntary-manslaughter conviction.\nThe State asserts voluntary manslaughter is an included offense of murder, the only difference being that it requires a less culpable mental state than murder. It contends the evidence in the instant case would have supported a murder verdict. Consequently, the State argues, where the evidence establishes defendant committed murder, it necessarily establishes defendant committed the included offense of voluntary manslaughter. Essentially, the State\u2019s position is that a defendant charged with murder may be convicted of the included offense of voluntary manslaughter as long as there is evidence to support a murder conviction even though the evidence fails to establish either of the mental states of voluntary manslaughter. The State relies on People v. Pierce (1972), 52 Ill. 2d 7, and People v. Crawford (1944), 387 Ill. 616.\nNeither Pierce nor Crawford supports the State\u2019s position. Indeed they support the opposite. Both define voluntary manslaughter as a lesser included offense of the charge of murder, but both require proof of the elements of voluntary manslaughter. In Crawford, this court said that \u201cunder an indictment for murder, where a homicide is proved but proof of the requisite element of malice is lacking, a conviction for manslaughter is proper, if justified by the evidence.\u201d (Emphasis added.) People v. Crawford (1944), 387 Ill. 616, 620.\nIn Pierce, the defendant was indicted for murder but was convicted of voluntary manslaughter. Defendant argued the jury should not have been given instructions on voluntary manslaughter. This court affirmed the conviction, but only after finding \u201cthere was ample evidence presented to the jury from which they might conclude that defendant\u2019s actions resulted from an intense passion.\u201d People v. Pierce (1972), 52 Ill. 2d 7, 11.\nIn the instant case, in reversing defendant\u2019s conviction, the appellate court relied on People v. Newman (1935), 360 Ill. 226, 231-32, where it was said:\n\u201cThis court has often announced the rule that where the evidence is such that it 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 of verdict on manslaughter is improper, and where given at the request of the People amounts to error requiring a reversal of the judgment if the accused be found guilty of the lesser crime. [Citations.]\u201d\nThe record does not disclose any evidence which would establish defendant acted in the \u201cheat of passion\u201d or that he believed the killing was justified but his belief was unreasonable. The State does not point to any evidence to support the voluntary-manslaughter conviction; instead it argues such evidence is not necessary. We disagree. What was said in People v. Thompson (1973), 11 Ill. App. 3d 752, 756, is applicable here: \u201cIn a murder trial, a defendant may properly be found guilty of the lesser offense of voluntary manslaughter, but only if the evidence adduced at trial establishes the necessary elements of that offense.\u201d (See People v. Towers (1974), 17 Ill. App. 3d 467; People v. Smith (1973), 16 Ill. App. 3d 553; People v. Clark (1973), 15 Ill. App. 3d 756.) We hold the reversal of defendant\u2019s voluntary-manslaughter conviction was proper.\nThe State requests that if the voluntary-manslaughter conviction is not upheld, it should be allowed to prosecute the defendant again for murder. Alternatively, the State asks that we reduce the degree of the offense to involuntary manslaughter under Supreme Court Rule 615(bX3) (73 Ill. 2d R. 615(b)(3)). As previously stated, the jury found the defendant not guilty of murder and involuntary manslaughter. See Ill. Const. 1970, art. I, sec. 10.\nFor the reasons stated, the judgment of the appellate court is affirmed.\nJudgment affirmed.\nJUSTICE GOLDENHERSH took no part in the consideration or decision of this case.", "type": "majority", "author": "JUSTICE MORAN" } ], "attorneys": [ "Tyrone C. Fahner and Neil F. Hartigan, Attorneys General, of Springfield, and Alan E. Stumpf, State\u2019s Attorney, of Waterloo (Stephen E. Norris, and Raymond F. Buckley, Jr., of the State\u2019s Attorneys Appellate Service Commission, of Mt. Vernon, of counsel), for the People.", "Goldenhersh and Goldenhersh, P.C., of Belleville (Marvin W. Goldenhersh, of counsel), for appellee." ], "corrections": "", "head_matter": "(No. 56940.\nTHE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. PATRICK FAUSZ, Appellee.\nOpinion filed March 25, 1983.\nRehearing denied May 27, 1983.\nTyrone C. Fahner and Neil F. Hartigan, Attorneys General, of Springfield, and Alan E. Stumpf, State\u2019s Attorney, of Waterloo (Stephen E. Norris, and Raymond F. Buckley, Jr., of the State\u2019s Attorneys Appellate Service Commission, of Mt. Vernon, of counsel), for the People.\nGoldenhersh and Goldenhersh, P.C., of Belleville (Marvin W. Goldenhersh, of counsel), for appellee." }, "file_name": "0535-01", "first_page_order": 559, "last_page_order": 565 }