APPEAL from the Circuit Court of Champaign County; the Hon.
BIRCH E. MORGAN, Judge, presiding.
MR. JUSTICE SIMKINS DELIVERED THE OPINION OF THE COURT:
Appellant-Defendant Ernest Davis was tried before a jury and convicted of armed robbery of Joe Manzella, Sr., of attempt murder of the same individual, and of attempt murder of Frank Manzella. The defendant was sentenced to indeterminate terms of 5 to 15 years of each conviction, the sentences to run concurrently.
Joe Manzella, Sr., Frank Manzella, his son, and Tony Ligga, own and operate Patio Number One, a restaurant in Champaign, Illinois, which was the scene of the occurrence in question.
On January 11, 1970, at about 1:55 A.M., the defendant came into the restaurant, ordered a beef sandwich "to go" which was prepared and delivered to him in a paper sack. Defendant then went to the cash register where Joe Manzella was working, pulled a revolver and demanded that Joe put money in the sack which contained the sandwich. Joe did so, a scuffle ensued and the defendant fired two shots, one of which struck Joe Manzella in the hand and the other struck Frank Manzella in the stomach. There were many patrons in the restaurant and a scene of considerable confusion attended these events. People were running, there was shooting, the defendant succeeded in getting through a door which led from the restaurant into a vestibule while carrying the sack containing the money. The outer door which opens from the vestibule to the outside of the restaurant opens in a different fashion than the inner door which leads to the vestibule. At this point the defendant became confused, was unable to open the outer door, dropped the sack containing the money and broke the glass in the outer door and thus exited from the premises. When the police arrived many persons had seized the defendant, had thrown him to the sidewalk in front of the restaurant and were beating him.
• 1 Defendant argues that the evidence was sufficient to support a verdict of attempt armed robbery and that his tendered instruction should therefore have been given. An analysis of the evidence, however, discloses that he relies upon what may be termed negative testimony. Some witnesses observed the entire transaction, others observed only parts of it, but the positive, affirmative testimony of several witnesses clearly establishes that the defendant demanded, at the point of a gun, that Joe Manzella deliver money to him, that money was placed in the paper sack and that the paper sack was later found, together with the money in the vestibule, and that several witnesses observed the defendant carrying the sack which contained the money. Defendant concedes that there is sufficient evidence of armed robbery to support the jury's verdict. The trial court was correct in refusing to instruct on attempted armed robbery. That the defendant took money from the person and presence of Joe Manzella, Sr., is established beyond any reasonable doubt, and there is no evidence in this record upon which the jury would have been justified in concluding that the defendant had only attempted to commit armed robbery.
The defendant states his next contention of error as follows: "The trial court committed prejudicial error when it instructed the jury, over defendant's objection, that the felony murder concept is included in the definition of murder applicable to attempt murder". We first note that two counts of the indictment which invoked the felony murder rule were dismissed, prior to trial, by the Court on defendant's motion. These counts charged, in essence, that the defendant committed the offense of attempt in that he did, with intent to commit the offense of armed robbery, shoot Frank Manzella and Joe Manzella, which acts constituted a substantial step toward the commission of the offense of murder. These two counts were obviously calculated to apply the felony murder concept as contained in Ch. 38, Sec. 8-4, Ill. Rev. Stats., 1967. Defendant was then tried upon each of three counts remaining in the indictment. One of these counts charged armed robbery of Joe Manzella; another charged that defendant committed the offense of attempt * * * in that he did knowingly and with intent to commit the offense of murder, did shoot one Frank Manzella * * *, which act constituted a substantial step toward the commission of the offense of murder * * *." The third count upon which defendant was tried charged the offense of attempt murder of Joe Manzella and with the exception of the change of names reads precisely as the count charging attempt murder of Frank Manzella.
To place the respective arguments of counsel in context we note that the following instructions were given:
"A person commits the crime of murder who kills an individual if, in performing the acts which cause the death, he intends to kill or do great bodily harm to that individual; or he knows that such acts will cause death to that individual; or he knows that such acts create a strong probability of death or great bodily harm to that individual; or he is attempting to commit or is committing the crime of Armed Robbery.
A person commits the crime of attempt who, with intent to commit the crime of Murder, does any act which constitutes a substantial step toward the commission of the crime of murder.
The crime attempted need not have been committed.
To sustain the charge of Attempt, the State must prove the following propositions:
That the defendant performed an act which constituted a substantial step toward the commission of the crime of Murder; and
That the defendant did so with intent to commit the ...