APPEAL from the Circuit Court of Champaign County; the Hon.
BIRCH E. MORGAN, Judge, presiding.
MR. JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:
This is an appeal by Steven Joseph Tillman and Earl Lee Mims from findings of guilty in a bench trial and sentences of thirty-five to fifty years for murder, five to fifteen years for attempted murder, and five to twenty years for armed robbery, the sentences to run concurrently.
Defendants were indicted under sections 9-1, 8-4 and 18-2 of the Criminal Code (Ill. Rev. Stat. 1967, ch. 38, pars. 9-1, 8-4 and 18-2). The State's theory was that defendants were accountable under section 5-2 of the Criminal Code (Ill. Rev. Stat. 1967, ch. 38, par. 5-2(c) as accomplices to the crime of armed robbery committed by Franklin Johnson and Andrew Allen, and therefore parties to the crime of murder, as principals, as defined in section 9-1(a)(3) and of attempted murder, as principals, as defined in section 8-4(a) of the Criminal Code, committed by Johnson and Allen.
Defendants contend that the evidence does not prove beyond a reasonable doubt the intent required of them in section 5-2 of the Criminal Code, that
"* * * A person is legally accountable for the conduct of another when: * * *
(c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense. * * *"
Further, defendants contend that the evidence does not prove beyond a reasonable doubt that defendants in any way promoted or facilitated, solicited, aided, abetted, agreed or attempted to aid in the commission of the crimes charged.
Defendants further contend that the evidence does not prove their accountability beyond a reasonable doubt when considered in light of the fact that a finding of accountability in a robbery will automatically, although fictionally, result in a finding of intent of murder where murder occurs in the course of the robbery. Defendants further urge that the statute of felony-murder should be interpreted so as not to lead to a harsh result and should be modified, limited or abolished by judicial interpretation to provide that murder in the course of a dangerous felony creates only a rebuttable presumption of one of the mental states set forth in section 9-1(a)(1) and (2) of the Criminal Code. Defendants further urge that the sentences imposed are harsh and excessive in view of defendants' nonparticipation in the crimes.
These contentions require a somewhat detailed examination of the evidence in this case.
On the morning of September 8, 1968, the defendants were asked by their acquaintances, Johnson and Allen, to accompany them from Chicago to Mounds, Illinois. Having no money, defendants first declined, but upon assurance by Johnson and Allen that they had money and would take care of things, they accepted. The four drove to Mounds. However, upon discovering the distance of the trip, defendants made several requests to return to Chicago, as Mims had to be back for classes in high school Monday morning and Tillman had to be back on his job Monday morning.
Sunday evening, when defendants again met Allen and Johnson in Mounds, defendants insisted upon returning to Chicago. Before returning, Allen and Johnson went to the home of Allen's grandfather and obtained a .22-caliber pump-action rifle. Defendants, at this point, became aware that Allen and Johnson were "high" from narcotics. Thus, Tillman drove the car on the return trip.
While en route to Chicago, Johnson shot and fatally wounded one Beatrice Smith, and Allen shot and wounded, but did not kill, her companion, George Menard, at a roadside rest area. Johnson and Allen took money from the man and woman as well as certain other items of personal property. It is in connection with these crimes that defendants were indicted, found guilty and sentenced.
Allen and Johnson testified in this case as witnesses for the prosecution and statements taken at the Pulaski County Courthouse, Mound City, Illinois, on September 15, 1968, from the defendants Tillman and Mims were admitted into evidence.
From the statement of Tillman it appears that on the return trip from Mounds Tillman drove, with Allen in the front passenger seat and Johnson and Mims in the rear seat. While en route north both Tillman and Allen saw a car parked in a roadside rest area on the left (or west) side of the northbound highway. Tillman slowed down and on Allen's instructions turned the car around and drove south past the parked car. Allen told Tillman to stop the car. He did, and Johnson and Allen got out of the car. Johnson had a rifle and Allen a pistol, which they had been holding. Tillman then drove north past the parked automobile and some distance from the rest area stopped the car. He said he heard no conversation from the rest area but did hear five or six shots. Tillman, in his statement, further stated that quite some time before they reached the rest area, Allen and Johnson had talked about getting another car because Tillman and Mims didn't want to go through what they did. He also stated that at a filling station prior to passing the rest area, the parties saw a Lincoln Continental, and that Allen had wanted to take it. Tillman stated that he and Mims dissuaded the taking of this car. He said that it was his intention, at the rest area, to wait until Allen and Johnson were out of the car, then to run off and leave them. Tillman stated that at a prior place in the trip, Allen threatened to shoot him, and that he replied that if he did so he (Tillman) would run the car off the road.
Tillman, in his statement, further denied he had any knowledge of what transpired at the rest area. He said he heard shots, that the lights on the parked car came on, and it came up the road toward the car he was driving and passed it. He said that he started flicking the lights on his car and blowing the horn; that he caught up with the other car, and asked Allen or Johnson if they were going to leave them. Johnson handed Tillman $2.00 and told Tillman to hand him his jacket. Tillman gave him his jacket. At this point Johnson and Allen pulled ahead, and Tillman and Mims slowed down to let them get ahead. They then proceeded on Route 45 toward Chicago, passing a roadblock where there were police cars with red lights.
Mims, in his statement, related substantially the same facts as Tillman, stating that Tillman was forced to stop the car; that neither he nor Tillman were close to the vehicle parked at the roadside area; that the car in which Tillman and Mims were was two blocks or a block and a half north of the roadside parking area. He further stated that he could see nothing of what was going on back at the vehicle. He said he heard six or seven shots. He did not see any people. The statement then reads:
"A. [Defendant Mims] Me and Steve, we pulled off. . . . and started driving on. They got up with us and started hollering, you know, they just killed, they just killed.
"Q. [Joseph T. Brown, Chief Investigator, Champaign County Sheriff's Department] Who hollered to you `they ...