APPEAL from the Circuit Court of Will County; the Hon. PHILIP
F. LOCKE, Judge, presiding.
MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 10, 1973.
Robert Bruce Papes, Anthony Rock and Glenn Hickman were indicted by the Grand Jury of Will County for the offenses of murder and burglary. After trial by jury the defendants Rock and Hickman were found guilty of the crimes of murder, burglary and criminal damage to property. Papes was found guilty of burglary and criminal damage to property but not guilty of murder. The defendants Hickman and Rock filed a motion to arrest the judgment of guilty of murder and burglary. This motion was partially granted by the trial court in that the judgment of guilty for the crime of murder was arrested.
Papes was placed on probation for a term of two years for the offense of burglary and as a term of probation was ordered to serve six months at the Illinois State Farm at Vandalia. The defendant Rock was sentenced by the trial court to a term of not less than one (1) year nor more than one (1) year and one (1) day in the penitentiary for the offense of burglary. The defendant Hickman was placed on probation for the offense of burglary for a period of two years and as a term of probation he was ordered to serve nine months in the Illinois State Farm at Vandalia.
The State has appealed from the order of the trial court arresting the judgment of murder as to the defendants Rock and Hickman.
The factual situation which resulted in the trial of the defendants occurred on the evening of April 2, 1970, at which time seventeen policemen from the police force of the city of Joliet were participating in a surveillance of a building known as the Illinois Wine and Liquor Warehouse. Among the officers involved in the surveillance was Sergeant James Cronk, who shortly before 10:15 P.M. noticed Robert Bruce Papes and the defendant Anthony Rock pass by the warehouse several times in a Cadillac automobile. Later several officers saw a Chevrolet automobile enter an alley south of the warehouse and stop at a side door of the building. Several people left the automobile and disappeared from sight into the doorway. The driver of this vehicle, who was Papes, walked a short distance, made a surveillance of the area, returned to the automobile and then drove out of the sight of the officers. After several minutes Papes was again seen walking in the alley and after once more looking over the area he again disappeared from the sight of the police officers when he went to the location of the side doorway of the warehouse. It was within a matter of a few seconds of Papes' disappearance that Sergeant Cronk saw three individuals exit from the side doorway of the warehouse, at which time he signaled the officers to close in from various directions towards a concrete parking lot which was to the rear and west of the warehouse.
Papes and the defendants Rock and Hickman upon seeing the officers approaching them proceeded to run. Papes ran in a southwesterly direction and the defendants Rock and Hickman in a northwesterly direction toward some bushes located at the northwest corner of the parking lot. Papes was apprehended when a Sergeant Erwin pointed a shotgun at him. Papes submitted to an arrest and upon his person was found a loaded pistol and additional cartridges. As the defendant Rock was running he was carrying a small object in his hand. The defendant Hickman was carrying an attache case as he was fleeing.
The defendants Rock and Hickman ran through the bushes while in the meantime Sergeant Cronk ran to the rear of the warehouse where he noticed two people running in a northwesterly direction. Sergeant Cronk yelled "halt police" several times but his commands were ignored. He lost sight of the two fleeing individuals but within seconds thereafter saw a man carrying a handgun running towards the bushes at the northwest corner of the parking lot. Sergeant Cronk, believing that this approaching individual was one of the burglars of the Illinois Wine and Liquor Warehouse, and referring to the handgun, ordered the person to "drop it." When there was no compliance to this warning Sergeant Cronk fired his shotgun at the individual, who was later discovered to be Detective William Loscheider of the Joliet police force. Loscheider was killed by this shot from his fellow officer's gun.
Approximately one-half hour later the defendants Rock and Hickman were arrested as they were walking on a street approximately two and a half blocks from the warehouse. Neither of the defendants had a weapon on his person.
Subsequent to the fatal shooting of Loscheider the police officers discovered that entry to the warehouse had been made by removing a panel from the side door and also by removal of the lock from the door.
During the trial of the defendants an analyst from the Illinois Bureau of Identification Crime Laboratory testified that the tool marks found on the side door of the warehouse were made by a screwdriver found in an attache case which was discovered on the parking lot to the rear of the warehouse.
During the course of the trial the court struck from the murder count of the indictment as to the defendants Rock and Hickman all allegations as to the defendants arming themselves in furtherance of a conspiracy to burglarize the Illinois Wine and Liquor Warehouse.
The foregoing constitutes a brief summary of the unusual factual situation which led to this appeal and which presents to us the question as to whether or not the trial court erred when it entered an order arresting a judgment of guilty of murder against the defendants Rock and Hickman which had been returned against them by the jury.
More narrowly presented we must determine whether the actual shooting which caused the death of an innocent victim must have been performed by the defendants or someone acting in concert with them in order to ...