{ "id": 2867631, "name": "The People of the State of Illinois, Plaintiff-Appellee, v. Nelson W. Boisvert, Defendant-Appellant", "name_abbreviation": "People v. Boisvert", "decision_date": "1975-04-03", "docket_number": "No. 73-178", "first_page": "35", "last_page": "43", "citations": [ { "type": "official", "cite": "27 Ill. App. 3d 35" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "447 F.2d 314", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 3582426, 808372 ], "pin_cites": [ { "page": "321" } ], "opinion_index": 0, "case_paths": [ "/f2d/447/0314-01" ] }, { "cite": "442 F.2d 885", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 769522 ], "year": 1967, "pin_cites": [ { "page": "890" } ], "opinion_index": 0, "case_paths": [ "/f2d/442/0885-01" ] }, { "cite": "382 F.2d 150", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 4067813, 2076063 ], "weight": 2, "year": 1967, "pin_cites": [ { "page": "155" }, { "page": "155" } ], "opinion_index": 0, "case_paths": [ "/f2d/382/0150-01" ] }, { "cite": "444 F.2d 888", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 778723, 3583020 ], "year": 1967, "pin_cites": [ { "page": "889" } ], "opinion_index": 0, "case_paths": [ "/f2d/444/0888-01" ] }, { "cite": "16 Ill.App.3d 504", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2519605 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/16/0504-01" ] }, { "cite": "123 Ill.App.2d 97", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1580116 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-app-2d/123/0097-01" ] }, { "cite": "131 Ill.App.2d 103", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2911047 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/ill-app-2d/131/0103-01" ] }, { "cite": "57 Ill.App.2d 452", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2597621 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/ill-app-2d/57/0452-01" ] }, { "cite": "4 Ill.App.3d 522", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2913623 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/4/0522-01" ] }, { "cite": "123 Ill.App.2d 407", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1580217 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/123/0407-01" ] }, { "cite": "120 Ill.App.2d 374", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1583523 ], "pin_cites": [ { "page": "378" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/120/0374-01" ] }, { "cite": "56 Ill.2d 241", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5404881 ], "pin_cites": [ { "page": "253" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/56/0241-01" ] }, { "cite": "378 Ill. 557", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2549252 ], "weight": 2, "pin_cites": [ { "page": "563" }, { "page": "563" } ], "opinion_index": 0, "case_paths": [ "/ill/378/0557-01" ] }, { "cite": "54 Ill.App.2d 27", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5282362 ], "weight": 2, "year": 1941, "pin_cites": [ { "page": "36-37" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/54/0027-01" ] }, { "cite": "7 Ill.App.3d 401", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2674767 ], "pin_cites": [ { "page": "403" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/7/0401-01" ] }, { "cite": "411 Ill. 46", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5312273 ], "year": 1972, "pin_cites": [ { "page": "53" } ], "opinion_index": 0, "case_paths": [ "/ill/411/0046-01" ] }, { "cite": "36 Ill.2d 483", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5377285 ], "weight": 2, "year": 1966, "pin_cites": [ { "page": "489" }, { "page": "490-491" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/36/0483-01" ] }, { "cite": "50 Ill.2d 302", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2912984 ], "weight": 2, "year": 1967, "pin_cites": [ { "page": "306" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/50/0302-01" ] }, { "cite": "12 Ill.App.3d 960", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2855286 ], "weight": 2, "pin_cites": [ { "page": "965" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/12/0960-01" ] }, { "cite": "40 Ill.2d 233", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2857760 ], "weight": 2, "year": 1973, "pin_cites": [ { "page": "241" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/40/0233-01" ] }, { "cite": "49 Ill.2d 162", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2909498 ], "weight": 2, "year": 1968, "pin_cites": [ { "page": "166" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/49/0162-01" ] }, { "cite": "35 Ill.2d 178", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5378996 ], "weight": 3, "year": 1971, "pin_cites": [ { "page": "182" }, { "page": "182" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/35/0178-01" ] }, { "cite": "17 Ill.App.3d 1043", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2511166 ], "pin_cites": [ { "page": "1049" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/17/1043-01" ] }, { "cite": "22 Ill.App.3d 938", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2943903 ], "year": 1974, "pin_cites": [ { "page": "944-5" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/22/0938-01" ] }, { "cite": "39 Ill.2d 318", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2856294 ], "year": 1974, "pin_cites": [ { "page": "321-322" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/39/0318-01" ] }, { "cite": "53 Ill.2d 228", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2926044 ], "year": 1968, "pin_cites": [ { "page": "236" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/53/0228-01" ] } ], "analysis": { "cardinality": 852, "char_count": 16914, "ocr_confidence": 0.742, "pagerank": { "raw": 2.4939857252456116e-07, "percentile": 0.8088332563018152 }, "sha256": "4f22f427b71e39141f22fb7b7648aa245cb7d26120d2f5c99cbf897f30c24660", "simhash": "1:8966bdeae8488245", "word_count": 2906 }, "last_updated": "2023-07-14T15:22:05.356803+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "The People of the State of Illinois, Plaintiff-Appellee, v. Nelson W. Boisvert, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE SEIDENFELD\ndelivered the opinion of the court:\nNelson W. Boisvert, the defendant, appeals from his conviction of murder after a jury trial and from the imposed sentence of 20-35 years in the penitentiary. Defendant contends that the State\u2019s failure to prove his sanity and guilt beyond a reasonable doubt requires reversal, and that the court\u2019s refusal to give a tendered instruction defining involuntary manslaughter was error which requires a new trial.\nOn July 22, 1972, about 10 P.M., defendant and several of his friends went to the Boone Lake Camp grounds with various camping gear to get the camp site ready, while their wives apparently prepared the food at home. Another tent was pitched at then- accustomed place, and defendant and his friends selected a different site close by. While his friends unloaded the cars and began to pitch the tent, defendant, who seemed tired, set up a cot and began taking a nap. Shortly thereafter, a group of campers which included the deceased, Terry Stiles, returned to their campsite from tire swimming area. They were joking, laughing and making noise. This apparently disturbed or awakened the defendant who was sleeping on a cot some 20 or 30 feet away from the camp site of the Stiles\u2019 group. An argument regarding the noise ensued, after which defendant returned to his campsite.\nSome minutes later defendant went again to where the Stiles\u2019 group was camping and apologized. He shook hands with Terry Stiles and another of the men and they engaged in a brief and casual conversation. During the conversation defendant uttered a profanity and Stiles asked him to apologize, which defendant did. The conversation continued for a short time and Boisvert returned to his campsite.\nAbout 15 or 20 minutes later the defendant and one of his friends left for their homes to pick up the others. There was testimony that during the trip defendant seemed somewhat unhappy about the noise at the campsite. After arriving home the defendant was informed that his young daughter was still at a friend\u2019s house and had not yet come home. He became upset about this fact. He and his friend then loaded the car with additional camping material from his home, including defendant\u2019s shotgun.\nThe shotgun, when in the house, was always kept loaded for protection with double \u201cO\u201d buckshot in the top barrel and a number 2 magnum in the bottom barrel. It was defendant\u2019s usual practice to take his shotgun to Boone Lake, and most other campers would also carry guns. The Lake\u2019s facilities included a trap range and a rifle range.\nAfter the defendant and his friend returned to the Boone Lake campsite, someone in the Stiles\u2019 group made a comment regarding the Boisvert tent. The defendant asked if they were knocking his tent, to which Terry Stiles responded, \u201cNo, if I was, it would be over by now\u201d. When one member of the Stiles\u2019 group started walking to the rear of a nearby car, the defendant began walking toward his own car. When he got to his car he reached in the open door, pulled out his gun case and told the members of the Stiles\u2019 group not to go for a gun. He asked for Stiles saying, \u201cI want to talk to you. I want to talk to the guy who made me apologize. I want to talk to the loud mouth.\u201d There was testimony that he repeated this two or three times after which one of the Stiles' group said that if he wanted to talk to Terry he would have to talk to all of them.\nDefendant removed his shotgun from the gun case, and repeated that he wanted to speak to the guy who made him apologize. He said that he had a gun and that no one should try to get one. He then stated, \u201cI have the safety off,\u201d and asked if they wanted a demonstration. He said, \u201cI can get you all in one shot if I want to. I don\u2019t even have to aim. All I need to do is pull the trigger.\u201d\nOne of the Stiles\u2019 group tiled to calm defendant by showing him that they had no guns and wanted no trouble. The defendant insisted that he did not want to talk to him but to the \u201cloud mouth who made him apologize.\u201d At one point defendant instructed everyone to move away from Stiles.\nIt appears from the testimony that while defendant spoke to the Stiles\u2019 group he was holding the shotgun in his shoulder with one hand and with his finger on the trigger. There was a conflict, however, as to whether the gun was being pointed at anyone or was being waved around somewhat. This exchange lasted from 5 to 10 minutes. Finally, the defendant relaxed his weapon and began to turn away. There was a very slight pause. The defendant said, \u20181 am going to jail anyway * * * I don\u2019t like you anyway,\u201d and he turned back, brought the gun up and it went off. All this happened almost simultaneously. Terry Stiles was struck and killed, and the defendant fled.\nThere was testimony that the shotgun had a \u201chair trigger\u201d and would go off with little pressure.\nThe State introduced a statement given to the Winnebago County Sheriff\u2019s police on July 23, 1972, by defendant. In the statement defendant told of his complaints of the noise at the camp site and then said:\n\u201cAnd when we were arguing and this one guy went walking back to the back of a car and I was walking toward my car because I thought the guy was going to get a gun. I got back to my car and got my gun and told the other group of people not to go for any gun, the safety wasn\u2019t on, and as I turned and pointed the gun, it went off. The gun has a \u2018hair\u2019 trigger * * * When the gun went off the man I hit wasn\u2019t even the man I was mad at.\u201d\nDefendant, however, testified in his own behalf at the trial that he did not remember an argument at the camp site nor a subsequent apology for swearing. He did not recall that he helped pull up the tent or that he had any other arguments about the tent. When asked about the shooting he said he remembered that there was an argument. \u201cI pulled my gun out of the gun case and I remember saying not for them to go for a gun, and I pulled it out and turned around and it went off.\u201d He did not recall holding the gun but he did recall turning around and the gun going off and described it as happening in one motion.\nOn the sanity issue, the State introduced the testimony of members of the Stiles\u2019 group, two police officers and an expert witness while two expert witnesses and several lay witnesses testified for the defendant.\nFrom our review of the record, we first conclude that the defendant was proved to be sane beyond a reasonable doubt.\nThe testimony of the eye witnesses offered by the State was to the effect that they did not observe anything unusual about defendant during the confrontations. The experienced police officers said that the defendant appeared somewhat nervous and confused and appeared to have been drinking when taken into custody, but that he was not insane within the legal definition. The lay witnesses on behalf of defendant testified to previous incidents in which defendant lost his temper and threatened violence when intoxicated. His mother\u2019s testimony established that defendant had a broken family background, would lose his temper \u201cover everything\u201d when young and that he had been treated by a psychiatrist as a child. In addition, he had been sent by authorities, to a boys\u2019 school from which he frequently ran away. As an adult, he would often lose his temper and engage in violent and abnormal' conduct when drinking.\nThe experts who testified for the defense said that defendant had an I.Q. of 86, characterized as the dull-normal range. One expert testified that he was an emotionally immature, passive-dependent individual with poor impulse control, poor ability to test reality and less ability to cope with stresses than a normal person and that there was vulnerability to decompensation accentuated by alcohol. The other defense expert characterized defendant as suffering from a temporaiy ego rupture. Both experts in answer to hypothetical questions gave their opinion that defendant was insane under the legal definition. On very much the same factual background the State\u2019s expert came to the conclusion that defendant was legally sane.\nBased on the conflicting evidence the trier of the facts could properly determine that defendant was legally sane beyond a reasonable doubt. See People v. Newbury (1972), 53 Ill.2d 228, 236; People v. Ford (1968), 39 Ill.2d 318, 321-322; People v. Harrington (1974), 22 Ill.App.3d 938, 944-5; People v. Arnold (1974), 17 Ill.App.3d 1043, 1049.\nWe next consider the contention that the court committed reversible error by refusing an instruction tendered by defendant defining involuntary manslaughter.\nWe conclude, as a preliminary matter, that the evidence fully supports the jury\u2019s finding of murder. It is not necessary to show that an accused has formed an intention to kill in order to justify a murder conviction. It is sufficient to show that a defendant voluntarily and wilfully committed an act, the natural tendency of which was to destroy another\u2019s life, with tire intention being implied from the character of the act. (See People v. Latimer (1966), 35 Ill.2d 178, 182; People v. Cannon (1971), 49 Ill.2d 162, 166; People v. Gonzales (1968), 40 Ill.2d 233, 241; People v. Mitchell (1973), 12 Ill.App.3d 960, 965.) In this case an intention to commit murder could well have been implied from the defendant\u2019s conduct.\nThe question remains, however, whether there is evidence which would justify the giving of an instruction as to the lesser included offense of involuntary manslaughter.\nThe rule is well established that if there is some evidence in the record which, if believed by a jury, would reduce the crime to involuntary manslaughter, defendant has a right to an instruction defining the lesser included offense. (People v. Joyner (1972), 50 Ill.2d 302, 306; People v. Taylor (1967), 36 Ill.2d 483, 489; People v. Latimer (1966), 35 Ill.2d 178, 182.) A defendant is entitled to the benefit of any defense shown by the entire evidence; and the court does not weigh the evidence in malting the determination. (People v. Khamis (1951), 411 Ill. 46, 53.) Thus, even if the evidence is conflicting, and even if the defendant\u2019s testimony is impeached, a defendant may be entitled to the instruction. See People v. Boothe (1972), 7 Ill.App.3d 401, 403.\nIn this appeal, defendant argues that \u201cthere was abundant evidence introduced at the trial from which the jury might legitimately have found that the gun discharged accidentally.\u201d We do not assume that defendant is arguing that the shooting was purely an accident; for if the gun were accidentally fired he could not be guilty of involuntary manslaughter. (See People v. Johnson (1964), 54 Ill.App.2d 27, 36-37. See also People v. DeRosa (1941), 378 Ill. 557, 563.) In order to justify an instruction submitting the issue of involuntary manslaughter to the jury on defendant\u2019s theory there must be some evidence in the record which shows that defendant recklessly performed such acts causing death as were likely to cause death or great bodily harm. Ill. Rev. Stat. 1969, ch. 38, par. 9 \u2014 3(a); People v. Sanders (1974), 56 Ill.2d 241, 253.\nThe defendant\u2019s court room testimony does not advance his theory since it is essentially a lack of recall. His testimony that he remembered saying that the others should not go for a gun, that he pulled out his gun, turned around \u201cand it went off,\u201d is consistent with the testimony of the State\u2019s witnesses and does not advance a theory of reckless performance of acts causing death.\nIf any support is to be found for the defense it must be sought in the pretrial statement of the defendant. The statement however is fragmentary and somewhat ambiguous. The references to defendant\u2019s thinking that \u201cthe guy was going to get a gun,\u201d and that he told the group \u201cnot to go for any gun\u201d merely suggest self-defense, which is neither urged nor based upon any evidence and indicates an intentional use of force which would be inconsistent with the defense of involuntary manslaughter. (See People v. DeRosa (1941), 378 Ill. 557, 563; People v. Ruel (1970), 120 Ill.App.2d 374, 378.) The only possible statement of defendant which could bear on the defense of involuntary manslaughter is that the gun had a \u201chair trigger\u201d and while he had his finger on the trigger, \u201cit went off, I didn\u2019t even have my left hand on the gun.\u201d\nThere is no statement by defendant at any time that he did not deliberately and intentionally discharge the shotgun. There is no evidence in the record that the \"hair trigger\u201d referenced by defendant was other than a \u201cstandard crisp light trigger,\u201d as the gunsmith witness testified. There is no evidence that defendant was unfamiliar with the action of the gun or that in fact the action of the gun had anything to do with the homicide. The defendant had held the deceased and his friends at bay with the shotgun for several minutes commenting on the ease with which he could kill them all, and after turning away momentarily, turned back and simultaneously the gun went off while defendant was saying to the victim, \u201cI am going to jail * * * I don\u2019t like you anyway.\u201d Under any view which may be taken of the record we conclude that there is no evidence which, even if believed by the jury, would have been sufficient to show that defendant recklessly performed the acts causing the death.\nThe court did not err therefore in refusing an instruction defining involuntary manslaughter.\nPeople v. Guthrie (1970), 123 Ill.App.2d 407, cited by defendant is inapposite. Guthrie is a typical example of the rule that the jury must be permitted to decide which of several possible offenses the defendant has committed depending on the jury\u2019s view of the evidence. (See also People v. Joyner (1972), 50 Ill.2d 302; People v. Bembroy (1972), 4 Ill.App.3d 522.) These decisions rely, of course, on the conclusion of the reviewing court that there was some evidence in the record which, if believed by the jury, could have justified conviction of the lesser offense. Some incongruities arise, however, with regard to the application of this particular standard. GeneraUy, when there has been a conviction of murder, the courts are less inclined to determine on review that some evidence exists which would support conviction of the lesser included offense. See, e.g., People v. Cannon (1971), 49 Ill.2d 162; People v. Gonzales (1968), 40 Ill.2d 233; People v. Latimer (1966), 35 Ill.2d 178; People v. Mitchell (1973), 12 Ill.App.3d 960; People v. Wheeler (1965), 57 Ill.App.2d 452; People v. Johnson (1964), 54 Ill.App.2d 27.\nOn the other hand, in cases where defendant has been convicted of involuntary manslaughter although charged with murder in somewhat similar circumstances to those before us, the courts are inclined to find sufficient evidence to support the conviction of the lesser offense despite the argument that the evidence proves only voluntary manslaughter or murder instead. See People v. Barksdale (1970), 131 Ill.App.2d 103; People v. Reece (1970), 123 Ill.App.2d 97; cf. People v. Vega (1974), 16 Ill.App.3d 504.\nIn our view the most satisfactory trial solution would be for the judge to liberally apply the rules respecting the giving of instructions on lesser included offenses when requested by a defendant so as to give them freely in cases where there is any evidence fairly tending to bear upon the issue of that offense even though the evidence may be weak, insufficient, inconsistent or of doubtful credibility. (See United States v. Sinclair (D.C. Cir. 1971), 444 F.2d 888, 889; United States v. Belton (D.C. Cir. 1967), 382 F.2d 150, 155; see also People v. Taylor (1967), 36 Ill.2d 483, 490-491.) Even in cases in which there is no direct testimony that could establish a lesser included offense but where the jury could fairly infer that the lesser offense had been committed the defendant should be given the benefit of the doubt and the instruction as to the lesser included offense should be given in respect for the jury\u2019s central role in our jurisprudence. See United States v. Huff (D.C. Cir. 1971), 442 F.2d 885, 890; United States v. Belton (D.C. Cir. 1967), 382 F.2d 150, 155; cf. United States v. Whitaker (D.C. Cir. 1971), 447 F.2d 314, 321.\nDespite our conclusions regarding the degree of liberality which we believe should be exercised in the giving of instructions on lesser included offenses, we are unable to find error in the refusal of the instruction on the particular circumstances of the case before us.\nFor the reasons stated we affirm the judgment of conviction.\nAffirmed.\nT. MORAN and RECHENMACHER, JJ., concur.", "type": "majority", "author": "Mr. JUSTICE SEIDENFELD" } ], "attorneys": [ "Dom J. Rizzi and Jack R. Pine, both of Chicago, for appellant.", "John H. Maville, State\u2019s Attorney, of Belvidere, (James W. Jerz, of Illinois State\u2019s Attorneys Association, of counsel), for the People." ], "corrections": "", "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. Nelson W. Boisvert, Defendant-Appellant.\n(No. 73-178;\nSecond District\nApril 3, 1975.\nDom J. Rizzi and Jack R. Pine, both of Chicago, for appellant.\nJohn H. Maville, State\u2019s Attorney, of Belvidere, (James W. Jerz, of Illinois State\u2019s Attorneys Association, of counsel), for the People." }, "file_name": "0035-01", "first_page_order": 61, "last_page_order": 69 }