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People v. Mcchristian

FEBRUARY 19, 1974.




APPEAL from the Circuit Court of Cook County; the Hon. PHILIP ROMITI, Judge, presiding.


A jury found defendant Andrew McChristian guilty of conspiracy to murder five persons. He was sentenced to serve seven to fourteen years. In urging us to reverse his conviction, he presents four issues for our review. However, we will review only one because, in our judgment, its resolution is dispositive of this appeal. The issue is whether the evidence proved, beyond a reasonable doubt, that defendant was guilty of the conspiracy charged in the indictment.


On May 8, 1968, at about 9:30 P.M., near the intersection of East 65th Street and University Avenue in Chicago, three plain-clothes policemen stopped an automobile driven by David Barksdale, a youth who was known by the policemen as the leader of the Disciples, a street gang. In the automobile with Barksdale were four young men, William Gaddy, James Hall, Tyrone Withers and Mitchell Newton. The officers, who were members of the Chicago Police Gang Intelligence Unit, searched the five, found no weapons, said a few words to them and then released the youths. Barksdale drove on and the three policemen, in an unmarked car, followed him, approximately three car lengths behind.

After a number of turns in and out of several streets, Barksdale entered Ellis Avenue at East 66th Street and proceeded north. When he was at or near 6526 South Ellis, he slowed down, stopped and raced the motor of his automobile. At the time, but without knowing that Barksdale and his companions were coming there, defendant and Melvin Bailey were at or near 6526 South Ellis. They knew each other; in fact, they were members of the Blackstone Rangers, a youth gang that was a rival of the Disciples. They knew Barksdale, could recognize his car when they saw it; and on the evening in question, had arrived at 6526 South Ellis together. A short time before Barksdale drove up, defendant heard someone shout, "* * * here comes David!"

At about that moment, from the west side of Ellis Avenue, as they later testified, the three policemen heard someone shout, "D's!" They saw a number of youths on both sides of the street. They heard a shot. After a pause, several shots rang out from both sides of Ellis Avenue. One officer saw "* * * about ten or thirteen people firing [guns]." Two of the officers saw a young man run in front of their car and fire a gun four or five times directly at Barksdale's automobile. It was Melvin Bailey. The officers pursued him; and, while being chased, he threw away a .45-caliber gun that was recovered by the officers a moment or so before they arrested him.

While Bailey was being taken into custody, the third policeman saw a young man point a gun and fire it once at Barksdale's automobile. At the same time, that officer saw two other youths firing at Barksdale's car. The youth who was alone ran into a gangway and then to a porch, followed by the policeman. The youth ducked; and a short time later the policeman, using his flashlight, found him trying to unjam a .25-caliber automatic gun. He was the defendant, Andrew McChristian. On being ordered to do so, defendant dropped the gun and was placed under arrest. No one, either in or out of Barksdale's automobile was injured; no property was damaged.

A short time later, as defendant and Bailey were being put in the police car, Edward Dinkins approached the officers and asked why the two were being held. Dinkins was arrested. Barksdale, who had driven to the corner of East 65th Street and Ellis Avenue, stopped his car there and was asked by the three policemen to go with them to an area police station where they were taking defendant, Bailey and Dinkins. At the station, according to one policeman, Bailey and defendant had a conversation with Barksdale. Bailey said to Barksdale, "We didn't get you this time." Defendant, who was listening to the conversation, chuckled and said, "We will get him next time."

Defendant, Bailey and Dinkins were later indicted; and in fifteen counts, it was charged that on May 8, 1968, they committed aggravated assaults, aggravated batteries and attempts to murder David Barksdale, William Gaddy, James Hall, Tyrone Withers and Mitchell Newton. The sixteenth count charged the defendants with conspiracy to murder Barksdale and his four companions. Prior to their trial, on the State's motion, the ten counts that charged the aggravated assaults and aggravated batteries were dismissed. The defendants then went to trial before a jury on the six counts that charged the attempts to murder and conspiracy. The three policemen testified to the events of May 8, 1968. At the close of the State's evidence, the trial court directed the jury to acquit Dinkins of all the charges against him. Defendant, testifying as one of two defense witnesses, denied that in the evening of May 8, 1968, he discharged any firearm in the direction of Barksdale's car or conspired with Bailey to do so. The remaining cases were submitted to the jury, and it returned verdicts finding Bailey guilty of the attempts to murder and the conspiracy.

Defendant was acquitted of the attempts but was found guilty of conspiracy under the charge that on May 8, 1968, he, Bailey and Dinkins "* * * with the intent to commit the offense of murder, knowingly and intentionally agreed with each other and with divers other persons whose names are unknown to the Grand Jurors but who the said Grand Jurors believed to be members of an organization known as the Blackstone Rangers, to the commission of the offense of murder, that is to say, they knowingly and intentionally agreed to kill by shooting without lawful justification David Barksdale, William Gaddy, James Hall, Tyrone Withers and Mitchell Newton." In furtherance of the conspiracy, it was charged that on May 8, 1968, defendant and the two others intentionally discharged firearms in the direction of an automobile in which Barksdale, Gaddy, Hall, Withers and Newton were riding, with intent to kill or do great bodily harm to the occupants of the automobile. Therefore, in view of the specificity of the charge, the question we must decide is whether evidence which disclosed the facts in this record proved that on May 8, 1968, defendant, Bailey and Dinkins conspired to murder the five persons whose murder was the object of the alleged conspiracy.


• 1 The offense with which defendant, Bailey and Dinkins were charged in the conspiracy count was a specific intent crime. (See Ill. Rev. Stat. 1967, ch. 38, par. 8-2; Perkins, Criminal Law 629 (2d ed. 1969); Harno, Intent in Criminal Conspiracy, 89 U. Pa. L. Rev. 624, 635 (1941).) The gist of that crime was the unlawful combination or agreement; one into which, according to the State, the three defendants had entered with intent to murder David Barksdale and the four named companions who were in his automobile on the evening of May 8, 1968. See People v. Borrelli, 392 Ill. 481, 64 N.E.2d 719; People v. Edwards, 74 Ill. App.2d 225, 219 N.E.2d 382.

• 2 To sustain a conviction for conspiracy, the object of the conspiracy has to be proved as laid out in the indictment. (Evans v. People, 90 Ill. 384; Johnson v. People, 124 Ill. App. 213.) In this case, since the object of the conspiracy, according to the charge, was the murder of five named persons, the State had to prove that when defendant and Bailey fired guns in the direction of the automobile in which the five were riding, they did so with knowledge that the purported victims were in there. Compare People v. Seefeldt, 310 Ill. 441, 141 N.E. 829; see United States v. Allegretti (7th Cir. 1964), 340 F.2d 243.

• 3 An attempt to murder requires proof of specific intent to take human life. (People v. Davis, 6 Ill. App.3d 622, 286 N.E.2d 8.) For example, in a charge of conspiracy to mutilate the face of a named person, the State must prove that it was the face of the named person which the conspirators intended to mutilate, not that of someone else. (State v. Vetrano (Me. 1922), 117 A. 460.) And where it is charged that a bulb of sulphuric acid was thrown into a cab with intent to maim a named individual who was seated in the rear seat of the cab, the State must prove that the defendants knew that the intended victim was in the cab. (State v. Martin (1938), 342 Mo. 1089, 119 S.W.2d 298.) Therefore, in a case like this one, the State had to prove not only that the defendants knew David Barksdale, could recognize his automobile and shot at him the evening of May 8, 1968; it had to prove the defendants, as conspirators, had knowledge of Barksdale's four companions and shot at Barksdale's automobile with intent to murder them. (Compare United States v. Ausmeier (2d Cir. 1945), 152 F.2d 349; see People v. Hodson, 406 Ill. 328, 94 N.E.2d 166; People v. Niederhauser, 258 Ill. App. 564; Wilson v. State (1934), 127 Tex.Crim. 152, 74 S.W.2d 1020; State v. Hicks (1950), 233 N.C. 31, 62 S.E.2d 497.) A conspiracy against a number of ...

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