{
  "id": 2534879,
  "name": "The People of the State of Illinois, Plaintiff-Appellee, v. David Binion, Defendant-Appellant",
  "name_abbreviation": "People v. Binion",
  "decision_date": "1971-02-10",
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  "provenance": {
    "date_added": "2019-08-29",
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    "judges": [],
    "parties": [
      "The People of the State of Illinois, Plaintiff-Appellee, v. David Binion, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE ABRAHAMSON\ndelivered the opinion of the court:\nThe defendant, David Binion, was indicted for murder in the death of Vivian Wade that occurred on September 2, 1969. Binion waived trial by jury and after trial was convicted of voluntary manslaughter by the court and sentenced to the penitentiary for a term of three to twelve years. On appeal Binion contends that there was not sufficient evidence to show that he committed the offense of voluntary manslaughter beyond a reasonable doubt and that the lower court improperly denied his petition for probation.\nThe trial court was presented with two different versions of what occurred on September 2. Magnolia Fews, the principal witness for the State, testified that she lived in the City of Aurora and was a friend of Vivian Wade. At about 1:00 P.M. on that date, Miss Wade visited Mrs. Fews in the company of the defendant and a second man, William Bolds. Vivian entered her home first and was followed shortly by Binion and Bolds. Magnolia and Vivian were in the kitchen when Binion came in and set a briefcase on the kitchen table. Binion pulled a gun from the briefcase and pushed Vivians head with it \u201ckind of hard.\u201d Vivian used some \u201cbad words\u201d and threw her purse at Binion, striking him in the head. Binion fired the gun and a bullet entered Miss Wade\u2019s head and caused her death. It did not appear to Mrs. Fews that there was any ill will between Binion and Vivian Wade until the incident occurred.\nBinion testified that he had known Vivian Wade for about 8 or 9 years and that he called at her home on the morning of September 2 with his friend, William Bolds. At her request, he brought her a .32 caliber pistol. After a short stay at her home, the three of them left in Bold\u2019s automobile to run a few errands for Miss Wade. After a short time, they drove to the residence of Magnolia Fews where Vivian went in first to learn if Mrs. Fews was at home. She came back to the car and said that it was all right to go in and as the three went up the stairs Binion playfully slapped Miss Wade on the \u201cbutt\u201d and she said to Binion \u201cDon\u2019t do that.\u201d\nMinion and Vivian went into the kitchen where Vivian introduced him to Magnolia. Binion said that he did not recall that he had ever met Mrs. Fews before and Vivian said that his mind \u201cwasn\u2019t very long.\u201d Binion replied \u201cDon\u2019t feel my mind isn\u2019t very long\u201d and \u201cthumped\u201d Vivian on the head. She told Binion not to do that and when he jocosely answered \u2018What would you do about it\u201d she took the pistol from her handbag and pointed it at him. Binion had not been aware that she had the gun with her but was not concerned since he knew that it had not been loaded when he gave it to her earlier that morning. Binion grabbed Vivian\u2019s wrist and pulled her towards him, turning her arm and the gun around and it accidentally fired and shot the woman. Binion stated that at no time did his fingers touch the trigger or did he know the gun was loaded. He stated that Mrs. Fews was not in the Kitchen when the gun fired and denied that he had held the gun or pushed it against Miss Wade\u2019s head or that she had thrown her purse at him. Binion further testified that he and Miss Wade had been \u201cplaying\u201d all day and that there was no ill will between them. After the shooting, Binion became frightened and asked Bolds to give him a ride \u201canywhere\u201d. He passed out in the car and woke up in Chicago. He did not know Miss Wade was dead until he read it in the newspapers and he turned himself in approximately 15 to 20 days after the shooting.\nThe parties appear to agree that under an indictment for murder the court may find the defendant guilty of the lesser included offense of voluntary manslaughter and that an accused has no right to limit the determination to guilt or innocence on a murder charge where the evidence would support a conviction for the lesser charge. (People v. Taylor, 36 Ill.2d 483, 489; People v. Green, 23 Ill.2d 584, 590.) The fact that the evidence would have justified a finding of guilty on the charge of murder is not one of which the defendant can complain. People v. Green, ibid.; People v. Wiggins, 12 Ill.2d 418.\nIt is contended here, however, that the facts before the trial court did not establish those elements necessary to constitute the crime of involuntary manslaughter.\nThat crime is defined in Section 9 \u2014 2 of the criminal code (Ill. Rev. Stat, 1969, ch. 38, par. 9 \u2014 2) as follows:\n\u201c(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:\n(1) The individual killed, or\n(2) Another whom the offender endeavors to kill, but he negligently or accidentally causes the death of the individual killed.\nSerious provocation is conduct sufficient to excite an intense passion in a reasonable person * * *\u201d\nThe statute and cases agree that the provocation must be so serious as to excite passion in a reasonable person to justify a reduction of a murder charge to voluntary manslaughter. (People v. Pecora, 107 Ill.App.2d 283, 295; People v. Lopez, 93 Ill.App.2d 426, 429.) One case has stated that \u201c* * * the only categories of serious provocation which have been recognized are: substantial physical injury or assault, mutual quarrel or combat, illegal arrest, and adultery with the offender\u2019s wife.\u201d People v. Crews, 38 Ill.2d 331, 335.\nThe appellant contends that even if we consider only the testimony of Magnolia Fews that there is not sufficient evidence of a serious provocation on the part of the decedent since the mere throwing of a purse and the use of unspecified \u201cbad\u201d language could not provoke intense passion in a reasonable man. Tire closest factual analogy we can find is a case where a murder charge was reduced to manslaughter where the decedent used \u201cvile\u201d language and threw hot water in the face of the defendant. (People v. Sain, 384 Ill. 394.) The court stated in that case p. 399:\n\u201cIt was the province of the trial judge, a jury having been waived, to settle the conflict in the evidence and determine from the facts and circumstances whether the defendant acted in self-defense, or, if not in self-defense, whether the circumstances attending the assault were such that her death at defendant\u2019s hands constituted murder, manslaughter or justifiable homicide.\u201d\nWe do not agree that the acts of Vivian Wade prior to the shooting as related by Mrs. Fews and by the defendant were palpably insufficient to provoke a reasonable man to sudden passion. The sufficiency of the provocation was a matter to be determined by the trier of facts and we believe that the conviction for involuntary manslaughter was supported by the evidence before the court.\nIt is also argued that the trial court arbitrarily denied the defendant\u2019s petition for probation since it did not obtain an investigation report from a probation officer or conduct a hearing on the petition. The record shows that the defendant was found guilty on December 5, 1969 and that a series of continuances was subsequently granted apparently because of the ill health of defense counsel and the absence of the defendant. Although there is no investigatory report or transcript of a hearing contained in the record, the order denying the petition dated February 9, 1970 recites that the court considered a \u201cPresentence Investigation Report\u201d prepared by the probation department and conducted a hearing. It further appears that the defense counsel and the defendant replied affirmatively to the inquiry of the trial court if a hearing had been held. In any event, it is not necessary to obtain such a report or conduct a hearing in regard to a probation petition. People v. Gomez, 29 Ill.2d 432, 434; People v. Coolidge, 26 Ill.2d 533, 542.\nUnder these circumstances, we do not feel that the defendant has met his burden to show that the denial of his petition for probation was an abuse of discretion by the trial court.\nFor the reasons stated, the judgment of conviction will be affirmed.\nJudgment affirmed.\nSEIDENFELD and GUILD, JJ., concur.\nAMENDED OPINION UPON DENIAL OF PETITION FOR REHEARING\nOn the Petition for Rehearing, Defendant-Appellant, calls the Court\u2019s attention to the fact that in two instances in the opinion, we have used the word \u201cinvoluntary\u201d rather than \u201cvoluntary.\u201d\nThe opinion is hereby amended as follows:\nPage 4, first full paragraph should read:\nIt is contended here, however, that the facts before the trial court did not establish those elements necessary to constitute the crime of voluntary manslaughter.\nPage 5, first full paragraph should read:\nWe do not agree that the acts of Vivian Wade prior to the shooting as related by Mrs. Fews and by the defendant were palpably insufficient to provoke a reasonable man to sudden passion. The sufficiency of the provocation was a matter to be determined by the trier of facts and we believe that the conviction for voluntary manslaughter was supported by the evidence before the court.\nIn all other respects we affirm the opinion originally filed.\nSEIDENFELD and GUILD, JJ., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE ABRAHAMSON"
      }
    ],
    "attorneys": [
      "Morton Zwick, of Defender Project, of Chicago, (E. Roger Horsky, of Elgin, of counsel,) for appellant.",
      "William Ketcham, State\u2019s Attorney, of Geneva, (W. Ben Morgan, Assistant State\u2019s Attorney, of Elgin, of counsel,) for the People."
    ],
    "corrections": "",
    "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. David Binion, Defendant-Appellant.\n(No. 70-234;\nSecond District\nFebruary 10, 1971.\nModified on denial of rehearing March 31,1971.\nMorton Zwick, of Defender Project, of Chicago, (E. Roger Horsky, of Elgin, of counsel,) for appellant.\nWilliam Ketcham, State\u2019s Attorney, of Geneva, (W. Ben Morgan, Assistant State\u2019s Attorney, of Elgin, of counsel,) for the People."
  },
  "file_name": "0257-01",
  "first_page_order": 281,
  "last_page_order": 286
}
