APPEAL from the Circuit Court of Macon County; the Hon. ALBERT
G. WEBBER III, Judge, presiding.
MR. JUSTICE SIMKINS DELIVERED THE OPINION OF THE COURT:
On October 13, 1967, Defendant-Appellant Phillip K. Guthrie and Johnnie A. Weller were jointly charged in a two-count indictment, with the murder of Howard Richard Goodin. There was a severance and Weller and Guthrie were tried separately. Weller, a half-brother of defendant, was convicted of murder. Guthrie testified for Weller. Weller's conviction was reversed, the cause remanded for a new trial, and our opinion is found in People v. Weller, 123 Ill. App.2d 421, 258 N.E.2d 806.
Thereafter defendant Guthrie was tried on both Counts I and II of the Indictment. The jury returned a verdict of not guilty on Count II and returned a verdict of guilty on Count I of the Indictment. Defendant Guthrie was sentenced 40 to 60 years in the penitentiary. We reversed the conviction and remanded the cause for retrial in People v. Guthrie, 123 Ill. App.2d 407, 258 N.E.2d 802.
Since this appeal is hereinafter disposed of on a question of law, we see no useful purpose in a detailed recital of the evidence. The evidence on the second trial was substantially the same as that adduced on the first trial and is summarized in People v. Guthrie, supra.
Count I of the Indictment charged that Weller and Guthrie committed the offense of murder on or about the 25th day of July, 1967, in violation of Chapter 38, sec. 9-1, Ill. Rev. Stat. 1965, "in that they, pursuant to a plan to commit the offense of Robbery, * * *, a forcible felony, at the aforesaid location, took United States currency and a 1966 Chrysler Newport automobile from the person and presence of Howard Richard Goodin, by the use of force, and did, without lawful justification, kill said Howard Richard Goodin during the commission of said robbery, in that they bound his hands and feet and left him concealed in a corn field, knowing that said acts created a strong probability of death, contrary to the form of the Statute in such case made and provided, * * *."
Count II charged that Weller and Guthrie committed the offense of murder "in that they, pursuant to a plan to commit the offense of Kidnaping, * * * at the aforesaid location, knowingly and by enticement induced Howard Richard Goodin to go from his residence at 821 West Leafland Street, City of Decatur, County and State aforesaid, to the aforesaid location, with the intent secretly to confine him against his will, and during the commission of said offense did, without legal justification, kill the said Howard Richard Goodin, in that they bound his hands and feet and left him concealed in a corn field, knowing that said acts created a strong probability of death. * * *."
On October 26, 1970, Guthrie was retried before a jury on Count I of the Indictment, again found guilty of the crime of murder and was again sentenced 40 to 60 years in the penitentiary and his appeal is from that conviction.
Chapter 38, sec. 9-1, Ill. Rev. Stat. 1965, provides:
"MURDER. (a) A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:
* * * (2) He knows that such acts create a strong probability of death or great bodily harm to that individual or another; or (3) He is attempting or committing a forcible felony other than voluntary manslaughter."
The defendant Guthrie was represented by different counsel on his second trial. Prior to retrial on Count I, counsel filed a motion alleging that Count I of the Indictment was vague and uncertain, that defendant was being placed in double jeopardy because of his prior acquittal on Count II of the Indictment, and urged that he was uncertain as to whether the Indictment charged felony-murder under sub-section (3) of sec. 9-1, supra, or whether the Indictment charged murder under sub-section (2) of the Statute. The Assistant State's Attorney repeatedly stated and argued to the Court that both counts of the Indictment charged murder during the commission of a forcible felony, that the defendant was being tried for murder during the commission of a forcible felony and repeated these statements many times during his argument on the motion. The defense counsel finally responded, "I think implicit in Mr. See's argument that the key element in any of these murder charges is that it is a forcible felony."
The Court in denying defendant's motion to dismiss stated "Just as I said, in my judgment there are two words, forcible felony, they are both essential. You have got to have force, but you have also got to have a felony, and force as such can lead to a variety of felonies, according to what the specific crime is, here robbery * * * and the People are now restricted to a robbery count."
We also note that on the morning the trial was to commence the State's Attorney prepared, signed and delivered to the trial court a document entitled "Statement of the Nature of the Case" which reads in part, as follows:
"The defendant, Phillip K. Guthrie, is charged in an indictment with the offense of felony murder. It is * * * alleged that death occurred ...