APPEAL from the Circuit Court of St. Clair County; the Hon.
J.E. FLEMING, Judge, presiding.
MR. PRESIDING JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
This appeal is brought by Bennie Price, hereinafter referred to as defendant. Defendant seeks reversal of his jury conviction of attempted murder in violation of Ill. Rev. Stat. 1933, ch. 38, par. 8-4, on July 2, 1969, in the Circuit Court of St. Clair County. After a hearing on aggravation and mitigation, the defendant was sentenced to a term of not less than eight (8) nor more than fifteen (15) years in the Illinois State Penitentiary.
As a basis for reversal on appeal the defendant urges the following errors:
(1) The jury was improperly instructed as to the nature of the crime charged.
(2) The introduction of evidence of other crimes prejudiced the jury against the defendant.
(3) The argument of the prosecution was designed to prejudice and inflame the jury against the defendant.
(4) The State failed to prove with credible evidence the defendant's guilt beyond a reasonable doubt.
(5) The sentence imposed of eight (8) to fifteen (15) years was excessive.
The facts which gave rise to the conviction originated on April 7, 1969, in the morning hours when one Donald Davis was driving on Bond Avenue in East St. Louis, Illinois. He was confronted by a person known to him as Bennie Price, the defendant herein, an acquaintance of some four years. Price, having summoned Davis to halt, accused Davis of being a "traitor" in connection with an alleged robbery of a Concentrated Employment Program located in East St. Louis. The defendant accused Davis of turning State's evidence against Raymond Sharp in regard to the aforementioned robbery. A discussion ensued between the two regarding the robbery and they agreed that they would meet later in the morning at Raymond Sharp's home located on the 700 block, Gray Boulevard, East St. Louis, Illinois.
After Davis transported his girl friend to work, he went to Sharp's apartment and was admitted by Raymond Sharp. Also present in the apartment was the defendant who at the time was changing clothes in an adjoining room. The defendant entered the room and another conversation ensued as to the accusations made by the defendant, which Davis vehemently and continually denied. Heated and impassioned words were used by the defendant as he continued to become more embroiled. Then the defendant returned to the bedroom and was standing in the doorway of the adjoining room with his left hand concealed. The defendant continued to accuse Davis of being a traitor, to which Davis responded in the negative. As the defendant became more hostile, he grabbed Davis by the collar and began waving a gun in Davis' face. After Davis attempted to verbally dissuade the defendant from using the firearm, the defendant responded in an incoherent manner. Seconds later the gun discharged with the defendant in control of the gun some four feet from Davis with the projectile from the defendant's weapon narrowly missing Davis' head.
A struggle for the weapon commenced and the victim was able to wrestle the gun from the defendant. In disarming the defendant Davis testified that the gun "went off again. It hit my hand right here * * *." Although the gun did not fire, the trigger caused a slight injury which drew blood on Davis' hand. The victim told the defendant that the defendant was trying to kill him and that the defendant would not have any further opportunity. Davis proceeded to leave Sharp's apartment and other verbal exchange between Davis and the defendant was had in which Davis reiterated that he wasn't going to afford the defendant another opportunity to kill him.
Davis proceeded to the East St. Louis Police Station where he delivered the weapon, a .38-caliber revolver, to Lieutenant William F. Johnson, Sr. Johnson testified that the weapon, when delivered to him on April 7, 1969, at 9:15 A.M., had five live cartridges and one spent cartridge. Davis was observed to be bleeding from the hand and finger area by the police officer.
The defendant testified that he in fact caused the gun to be discharged but that he shot the gun into the ceiling instead of at Davis. This statement was contradicted by two later witnesses, one of whom was Davis, who testified that the bullet was not discharged into the ceiling but went into a wall of an adjoining hall, having passed through the doorway and coming to rest in the wall at a level consistent with Davis' height.
The defendant first contends that the jury was improperly instructed as to the nature of the crime charged. The defendant was charged in the Bill of Indictment with "the offense of Attempt in that he, with intent to commit murder shot at Donald Davis with a gun with intent to kill the said Donald Davis without lawful justification". The court gave ...