Appeal from the Circuit Court of Cook County; the Hon. FRANK
J. WILSON, Judge, presiding. Reversed.
MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT. OFFENSE CHARGED
Murder. Ill Rev Stats 1967, c 38, § 9-1(a)(3). *fn1
After a jury trial, John Thomas (hereinafter defendant) was found guilty of felony murder and sentenced to a term of 20 to 40 years. Coindictee Samuel Robinson had pleaded guilty, and co-defendant Jeffery Sykes was found not guilty.
CONTENTIONS RAISED ON APPEAL
1. The evidence is insufficient to establish that the act which caused the victim's death occurred while defendant was attempting or committing a forcible felony.
2. The jury was incompletely instructed as to the elements of the crime charged in the indictment.
3. Because defendant exercised his constitutional right to be tried by a jury, he was penalized by the imposition of a harsher sentence than he would have received had he pleaded guilty.
Joseph Podsiadlik, for the State:
On October 15, 1967, he was in Jack and Gloria's Tavern at 8701 South Marquette Avenue. He had arrived at 8:00 p.m. and talked and watched television along with another patron, Joe Sloma. At approximately 8:40 p.m., a fellow walked into the tavern and proceeded to the back of the room. The witness thought he was going to the washroom. Then another fellow, identified as defendant, entered and stood near the door. He then heard a bang, looked around, and saw John Benson slumped to the floor. The bang came from the back of the tavern and he heard the first fellow (Robinson) say to defendant, who was still standing at the door, "I got him." Both men then left, walking fast.
Joseph Sloma, for the State:
He was sitting at the bar in Gloria and Jack's Tavern when two fellows came in. One (Robinson) stood next to the witness facing the bartender, John Benson. Robinson took a gun out of his pocket and shot Benson. The witness did not know where the other man was at that time. The entire incident took between fifteen and twenty seconds. The two men then left the tavern and he ran out to see if there were any cars. He saw the men heading for a car parked in an alley some forty feet east of the intersection where the tavern is located. They ...