Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. F. EMMETT MORRISSEY, Judge, presiding.
Judgment of conviction reversed and remanded.
MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.
Attempt (to commit robbery). *fn1
After a jury verdict finding defendant guilty, the court imposed a sentence of one to five years.
(1) The State's Attorney made prejudicial statements in his closing argument to the jury which misled the jury, since the proof was inadequate to establish defendant's guilt.
(2) During oral arguments in this court a question was raised as to the sufficiency of the instructions to the jury. Thereafter, on motion, defendant was permitted to file an addition to his brief, in which he contends that his conviction should be reversed because the jury had not been instructed as to the elements of the crime charged.
There was testimony from State witnesses that defendant and another were attempting to rob a cabdriver when they were interrupted by the appearance of police officers who placed them under arrest. The policemen testified that defendant was armed with a knife and his companion with a gun. Defendant denied possession of the knife and denied any complicity in his companion's attempted robbery.
(1) The credibility of the witnesses is essentially a matter for the trier of fact. There is evidence which, if believed, establishes proof of defendant's guilt beyond a reasonable doubt. In view of the position we take on the question of instructions, we do not decide the point as to whether the State's Attorney did or did not make a prejudicial argument.
(2) Among the instructions tendered by the State and given by the court was the following, which sets forth the statutory definition of the crime of attempt:
The jury are instructed that a person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense. It does not matter that because such person has misapprehended the circumstances, it would have been impossible for him to commit the offense attempted. (Emphasis supplied.)
It can readily be seen that for this instruction to be meaningful to the jury, they must also be instructed as to the "specific offense" alleged to have been attempted, and the elements ...