The opinion
PRESIDING JUSTICE BUCKLEY, dissenting:
I must respectfully dissent. I believe that the evidence was sufficient to justify instructing the jury on the offense of involuntary manslaughter and failure to do so constitutes reversible error.
It is well established that an instruction defining a lesser offense should be given if there is evidence in the record that, if believed by the jury, would reduce the crime to a lesser-included offense. People v. Valdez, 230 Ill. App. 3d 975, 985 (1992). There was evidence in this case to warrant a jury instruction on involuntary manslaughter.
A person commits involuntary manslaughter when he “unintentionally kills an individual without lawful justification *** [and] his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly.” 720 ILCS 5/9 — 3 (West 1992). The crux of the offense of involuntary manslaughter is recklessness. A “reckless” mental state is a conscious disregard of “a substantial and unjustifiable risk that circumstances exist or that a result will follow.” 720 ILCS 5/4 — 6 (West 1992). The majority, relying on three factors set forth in People v. Rodgers, 254 Ill. App. 3d 148, 153 (1993), concludes that there was no evidence of recklessness to support the giving of an involuntary manslaughter instruction. I respectfully disagree.
Regarding the first factor, the majority briefly notes that there was a disparity in size between Johnson and defendant. However, consideration of this factor does not defeat an instruction for involuntary manslaughter in this case. In People v. Drumheller, 15 Ill. App. 3d 418 (1973), the case cited in Rodgers, the defendant killed a 14-month-old child by punching it in the stomach. The court held that a fatal blow from a fist may constitute murder where there is a great disparity in size and strength between the defendant and decedent. Drumheller, 15 Ill. App. 3d at 421 . There is no great disparity here. As the majority points out, this is not a case where an adult has killed a small child. See, e.g., People v. Ward, 101 Ill. 2d 443 (1984) (holding that involuntary manslaughter instruction was unwarranted where evidence showed that savagely brutal beating of four-year-old victim with mop handle resulted in bruises to the chest muscles, lungs, and brain and were too numerous to be counted). In fact, Johnson, who was 5 feet 2 inches and weighed 191 pounds, was 20 pounds heavier than defendant, who was 5 feet 7 inches and weighed 170 pounds. Certainly this factor provides no basis for preclusion of the involuntary manslaughter instruction.
The majority next cites the “duration and brutality of the beating” and the nature of Johnson’s injuries as factors which preclude a finding of recklessness. I again respectfully disagree with the majority’s conclusion. According to defendant, he struck Johnson in the face, causing her to spin around and grab onto a Dumpster to regain her balance. Defendant then kicked Johnson in her backside and then punched her in the jaw. Johnson fell to the ground and defendant kicked her in the back and ribs “numerous” times. The majority analogizes this case to People v. Rodgers, 254 Ill. App. 3d 148 (1993). However, the beating in Rodgers was quite different. In Rodgers, the victim was asleep on a couch when defendant approached and very forcefully punched the victim in the face approximately 7 to 13 times. The victim died almost immediately thereafter due to bleeding over the surface of the brain. Rodgers, 254 Ill. App. 3d at 153 . In the instant case, Johnson was able to get up, walk home, wash her face and remain ambulatory for a day or two. Johnson refused medical treatment. The medical testimony presented at trial was that Johnson had bruises on her right shoulder, left breast, right knee and right side of her face. Defendant caused no broken bones other than the jaw. Defendant caused no injuries to vital organs and no lacerations. Defendant did not use a lethal weapon. Johnson died as a result of a bacterial infection due to the neglected treatment of her broken jaw, not as a direct result of the blows inflicted by defendant. Her injuries, unfortunately, did not appear life-threatening to anyone. This was not a “savagely brutal” beating certain to cause death. Rather, this was a sudden and short episode brought on by a jealous rage. The beating took place within a 15-minute interval from the time she left her home with defendant to the time she returned— alone. Additionally, the parties had been drinking several hours before which constitutes additional evidence of recklessness. See People v. Bembroy, 4 Ill. App. 3d 522, 526 (1972).
The evidence could support a finding that defendant did not reasonably know or intend deadly consequences. Defendant and Johnson had been dating for over 13 years. Defendant had been physical with Johnson in the past. Enraged and jealous over Johnson’s possession of another man’s housekey, defendant struck her. The jury could have found that defendant was reckless in hitting Johnson, but that defendant did not intend to kill her and did not know that his actions would have such a result. The jury could reasonably have found that the fact that defendant gave Johnson her purse before he left was indicative of his lack of murderous intent since had defendant known that Johnson’s death was imminent he probably would not have returned her purse. Moreover, Johnson herself did not even seek medical treatment for her- injuries and refused the offer of her nephew’s assistance in obtaining medical treatment.
Because even slight evidence tending to show involuntary manslaughter entitles a defendant to the jury instruction (People v. Jenkins, 30 Ill. App. 3d 1034 (1975)), I would reverse and remand this cause for a new trial.