Appeal from the Circuit Court of Cook County; the Hon. Raymond
G. Hall, Judge, presiding.
MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
The defendant, James Allen, was convicted of murder in a jury trial in the circuit court of Cook County on September 17, 1970. He was sentenced to a term of from 100 to 200 years in the penitentiary. The defendant appealed directly to this court under our rules then in effect. 43 Ill.2d R. 603.
On January 24, 1969, the defendant and two others, Larry Gibson and Tyrone Oby, entered the Bell & Howell plant premises in Lincolnwood in a late-model Buick. Oby drove, Gibson was in the front passenger seat and the defendant was lying on the floor of the back seat. They were armed and planned to rob a Thillens armored truck which they thought was due to arrive at the plant about 6:00 P.M. to cash paychecks. Oby parked the car in front of one of the buildings and the three waited for the arrival of the truck. A fourth conspirator, Nathan Wright, proceeded to the general vicinity in another automobile, which was to be the "get-away" car.
The Chicago and Lincolnwood police departments had received information concerning the proposed robbery, and when the defendant and his co-conspirators arrived on the scene, some 20 police officers were waiting for them in concealed positions. Gibson was armed with a .357 magnum revolver; Oby with a .45 automatic pistol and the defendant with an AR-15 semi-automatic rifle, and the police had received information that the men would be armed with these weapons.
The Thillens truck did not appear, and, after waiting for more than an hour, the defendant and his co-conspirators decided to leave. As they started to do so the police department command vehicle ordered the police cars to converge on the Buick. One police vehicle blocked the road, and an officer in another vehicle by the use of a "bullhorn" announced that they were police officers and directed the vehicle to stop and for the occupants to throw out their guns. The Buick stopped, started moving rapidly in reverse, and then came to a stop. Shooting erupted from the Buick, and the police returned the fire. During the shooting Officer Singleton of the Chicago Police Department, who along with his partner had been in another police vehicle, was wounded. From this wound he subsequently died. The defendant was prosecuted for the murder of Officer Singleton.
During the shooting Oby, who was driving the Buick, was killed. Three shots had been fired from his .45-caliber automatic pistol. Gibson, who was in the front passenger seat, was wounded. As the police started to open the front door, Gibson raised his weapon and was shot and killed. There were two spent cartridges in his .357-caliber magnum revolver. The defendant was lying in the rear seat of the Buick on the AR-15 rifle. There were 19 rounds of ammunition in the magazine and one round of ammunition in the chamber. The rifle when fully loaded holds 20 rounds in the magazine and one round in the chamber. Another magazine containing 20 rounds was found in the back seat of the car.
Officer Singleton lived for about 10 months following the shooting. During this time the defendant had been charged with attempt to murder Officer Singleton. At that trial Officer Singleton testified. Later at the trial for the murder of Officer Singleton, the testimony of the officer given at the previous trial was read in evidence over the defendant's objection.
The defendant and Nathan Wright were charged with murder in a two-count indictment. The first count charged that the defendant and Wright committed the offense of murder in that they intentionally and knowingly shot and killed Singleton with a gun "in violation of Chapter 38, Section 9-1, of the Illinois Revised Statutes 1967." The second count charged that the defendant and Wright committed the offense of murder in that they shot and killed Singleton with a gun knowing that such shooting with a gun created a strong probability of death or great bodily harm to Singleton "in violation of Chapter 38, section 9-1(a)(2), of the Illinois Revised Statutes 1967."
The defendant contends that there is no evidence that he fired a shot and that he could therefore not be found guilty of the offense charged in either count of the indictment. He contends that the only theory that would support his conviction is one that in some way would hold him accountable for the acts of some other person.
The record does not support the contention that the defendant did not fire a shot. As noted above the AR-15 semi-automatic rifle when fully loaded has 20 rounds in the magazine and one in the chamber. The defendant's weapon when seized had 19 rounds in the magazine and one in the chamber. The bullet that had wounded Singleton had passed through his body and was not recovered, so no ballistic identification could be made. However, an officer at the scene of the crime testified that following the shooting he had examined the three weapons taken from the Buick automobile and that there was an odor of burnt powder on all three weapons, including the AR-15 semi-automatic rifle. Also a ballistic expert from the Chicago Police Department testified that he had examined the rifle and its barrel contained powder residue. There is, therefore, evidence from which the jury could conclude that the defendant had fired his weapon. However, as discussed later, it is not necessary to find that the defendant fired the shot that wounded the officer. Under the facts of this case the defendant was accountable regardless of who fired the shot.
As to accountability, defendant contends that the State had to prove beyond a reasonable doubt that he performed some affirmative act in aiding and abetting the murder. Relying on People v. Shields, 6 Ill.2d 200, and People v. Ramirez, 93 Ill. App.2d 404, the defendant contends that mere presence at the commission of the crime "is not culpable." The defendant urges a more narrow interpretation of our accountability statute (Ill. Rev. Stat. 1967, ch. 38, par. 5-2) than is justified.
We have recently rejected an argument similar to defendant's. In People v. Johnson, 55 Ill.2d 62, we held that where murder is committed during a robbery all participants in the robbery are deemed guilty of murder and it is immaterial who fired the fatal shot. (See also People v. Weber, 401 Ill. 584; People v. Armstrong, 41 Ill.2d 390; People v. Golson, 32 Ill.2d 398; People v. Bongiorno, 358 Ill. 171.) We likewise held in Johnson that if a killing is committed in the course of an escape or prior to the time that the perpetrators of a robbery had "won their way to a place of safety" each conspirator is guilty of murder. See also People v. Golson and People v. Bongiorno.
There is evidence here of conduct by the defendant other than mere presence at the scene of the crime. He actively participated in the preparation for and the attempted fulfillment of the plan to rob the Thillens money truck. His own statement details the preliminary discussion and planning of the robbery. In preparation therefor he learned how to operate the AR-15 rifle he was to use. He stole license plates to put on the Buick that was to be used in the robbery. Fully armed with the rifle he traveled with his conspirators to the Bell & Howell parking lot where he with his conspirators waited for their intended victim. When frustrated, they attempted to escape, and during the attempt Officer Singleton was shot. His involvement bears no resemblance to that of the defendants in Shields and Ramirez. Evidence that the defendant voluntarily attached himself to a group bent on illegal acts with knowledge of its design supports an inference that he shared the common purpose and will sustain his conviction of an offense committed by another. People v. Rybka, 16 Ill.2d 394.
The defendant contends that he was indicted under sections 9-1(a)(1) and 9-1(a)(2) of the Criminal Code and was charged with having shot and killed Officer Singleton and with having shot Singleton with a gun knowing that such shooting created a strong probability of death or bodily harm. He was not indicted for felony murder under section 9-1(a)(3). (Ill. Rev. Stat. 1967, ch. 38, par. ...