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People v. Weaver

MAY 5, 1972.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

JAMES WEAVER, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ROBERT J. COLLINS, Judge, presiding.

MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT:

OFFENSE CHARGED

Attempt (robbery). Ill. Rev. Stat. 1967, ch. 38, par. 8-4. Attempt (murder). Ill. Rev. Stat. 1967, ch. 38, par. 8-4. Aggravated battery. Ill. Rev. Stat. 1967, ch. 38, par. 12-4.

JUDGMENT

The case was tried before a jury which found defendant not guilty of attempt (murder) and aggravated battery, but guilty of attempt (robbery). He was sentenced to a term of not less than 13 nor more than 14 years.

CONTENTIONS RAISED ON APPEAL

(1) Defendant was denied equal protection of the law by the refusal of the trial court to provide him a free preliminary hearing transcript.

(2) Final arguments by the State were prejudicial to defendant because the prosecutor pointed a shotgun at the jury and made statements of fact not based on the evidence.

(3) The sentence of not less than 13 nor more than 14 years is inconsistent with the policy of providing indeterminate sentences.

EVIDENCE

On October 6, 1968, approximately 11:25 P.M., defendant entered Farmer Brown's Chicken Shack, a food carry-out store at 1271 N. Clybourn owned by a Mr. and Mrs. Gandy. He was followed into the carry-out by another man. Three women were working in the shop at the time and there were two other customers inside who had just placed their orders. Defendant and the other man approached the counter and were told to take a number for their order. Defendant then went to the rear of the shop with the other man, who then returned to the counter, drew a pistol, and announced a holdup. Defendant was next seen pointing a sawed-off shotgun over the counter. The man with the pistol fired a shot which was followed by a second shot from defendant's shotgun. Mrs. Gandy ducked behind the counter but was struck in the hand by the blast from defendant's shotgun.

Virginia Cousin, an employee at the store, reached for a pistol which was kept behind the counter, and fired first at the man with the revolver and then shot three times at defendant. Defendant was struck in the neck by one of her shots and fell to the floor still holding his shotgun.

Mr. Gandy came into the store and wrestled the shotgun away from defendant. The other man fled and Miss Cousin called the police.

The arresting officer found defendant lying on the floor with a bullet wound in the neck. He recovered an unused shotgun shell from defendant's coat pocket and a spent shell from the chamber of the shotgun ...


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