APPEAL from the Circuit Court of Morgan County; the Hon. PAUL
C. VERTICCHIO, Judge, presiding.
MR. JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:
Defendant was found guilty by a jury in the circuit court of Morgan County of the offense of armed robbery but not guilty of the alleged murder arising out of the same armed robbery. Judgment of conviction was entered on the verdict. Defendant was sentenced to an indeterminate term of 15 to 40 years and appeals.
While several issues are urged on appeal, we need discuss only the one which is dispositive. Defendant avers that the verdicts were legally inconsistent. We agree.
Defendant and his accomplice, David L. Hawkins, were apprehended by the Morgan County authorities for the armed robbery of a Wareco Station located in Jacksonville, Illinois, and the murder of one Charles Duane McKinney, the service station attendant. On December 15, 1971, defendant and Hawkins were indicted in a three-count indictment: Count I charged defendant with murder in that "he did without lawful justification, intend to kill or do great bodily harm to Charles Duane McKinney, and did by the use of a gun shoot and kill the said Charles Duane McKinney," in violation of section 9-1(a)(1) of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, ¶ 9-1(a)(1)); Count II charged dedant with murder in that "he did without lawful justification, [sic] shoot and kill with a gun, Charles Duane McKinney, while committing a forcible felony, to-wit: an armed robbery," in violation of section 9-1(a)(3) of the Code; Count III charged defendant with the offense of armed robbery in that "he did take property from the person or presence of another, to-wit: Charles Duane McKinney, at the Wareco service station at 602 N. Main St., Jacksonville, Illinois, while armed with a dangerous weapon, * * *." Hawkins plead guilty of the charge of murder and was sentenced to an indeterminate term of 35 to 95 years in the Illinois State Penitentiary. See People v. Hawkins, 14 Ill. App.3d 549, 302 N.E.2d 128.
Defendant's trial commenced on March 17, 1972. David L. Hawkins was called to testify for the State. He testified that he was serving a sentence of 35 to 95 years for the murder of Charles McKinney. He positively identified the defendant as being the same individual that had been with him on the night of the incident in question. He stated that he had known the defendant for 5 or 6 years.
Hawkins testified that he and defendant had been drinking beer in Winchester until approximately 1 A.M. on November 16, 1971. Thereafter they went to Jacksonville to spend the night at defendant's sister's residence. On the way to Jacksonville he and defendant had a conversation in which defendant allegedly stated that they needed more money to purchase beer and that defendant knew of a gas station that would be easy to rob.
They arrived at the gas station around 1:45 A.M., entered and bought a pack of cigarettes. Thereafter they left and drove around the block. On the way back to the station, defendant allegedly handed Hawkins a pistol and said, "If the dude gives you any trouble, just shoot him."
At this point in Hawkins' testimony, he identified People's Exhibit No. 6A-a .22-calibre pistol as the weapon used in the incident. Hawkins stated that the pistol was owned by defendant and that it was normally kept in the glove compartment of defendant's automobile.
The witness stated that after they had circled the block, defendant let him out. Hawkins proceeded to the Wareco Service Station where he shot and robbed the victim. When asked by the State's Attorney where the defendant was during this time, the witness stated: "He stayed out." Hawkins took the coin changer and an undetermined sum of cash from the deceased. Once in the automobile, he stated he dumped the contents of the coin changer, and all the bills onto the seat of the car. The defendant then drove into the country on the "Poor Farm Road". Defendant stopped his car on a bridge over a creek where they split the proceeds of the robbery. Defendant threw the gun and coin changer into the creek. He then proceeded to his sister's residence in order to establish an alibi. The witness contended that Dawson suggested that they needed an alibi.
On cross-examination, defense counsel questioned Hawkins concerning the nature of his relationship with defendant. Hawkins conceded that defendant was not an intimate friend, but rather a casual acquaintance. He also admitted he was high on drugs the night of the incident; and that he was jobless at that time and dependent upon his mother and uncle for support; and that he had experimented with several types of drugs angel dust in particular. This drug is a combination of cocaine, heroin and morphine. Under further cross-examination, the witness admitted he really did not know how many times he shot the attendent and that he could not clearly remember the defendant telling him that he should shoot the gas station attendant if the latter gave him any trouble. His lapse of memory was due to the fact that he had taken some heroin that evening, but he was positive that defendant had suggested that they needed an alibi. Cross-examination ended with a discussion of the condition of defendant's automobile on the evening of the incident.
When defendant took the stand, his testimony was completely at odds with that given by Hawkins. The defendant admitted that the murder weapon was his and presented a valid registration for the gun. He also admitted that he kept the pistol in the glove compartment of his car. He contended that the pistol was never loaded while it was in his glove compartment.
Concerning the night of the incident, the defendant testified that he met Hawkins around 9:30 or 10 P.M. on the evening of November 15. He and Hawkins eventually decided to go to Jacksonville where they intended to "find some girls." They stopped at the Wareco Station in Jacksonville around 1:30 A.M. in order to purchase some cigarettes. Defendant admitted that he and Hawkins had been drinking before they went to Jacksonville. He denied that he ever suggested to Hawkins that they should rob the Wareco Station or that Hawkins should kill the attendant. After leaving the filling station, he and Hawkins drove away in his automobile. The car eventually died and he told Hawkins to go back to the Wareco Station to seek assistance. After Hawkins left, defendant got out of his automobile, opened up the hood and attempted to ascertain the nature of his trouble. He found a battery post was loose. He tightened the battery post and the car started. Hawkins had not yet returned so defendant backed up and turned onto a side street. Just at that moment, Hawkins came around the corner and got into the car. Defendant then drove off. According to defendant, Hawkins did not say anything concerning the robbery and the shooting. He did not notice anything in Hawkins' hand when he entered the car. After defendant had driven three or four blocks, Hawkins stated he had just killed the gas station attendant. At first defendant thought Hawkins was joking, so he kept on driving. He drove out to the edge of town in order to permit Hawkins to relieve himself and stopped as soon as he came to the "Poor Farm Road". It was at this time the defendant noticed the money changer and the gun lying on the floorboard of the car. He realized that Hawkins was not joking. Defendant stated he grabbed the gun and threw it, for he was afraid that Hawkins might try to shoot him. Defendant contended that at no time did he intend or plan with David Hawkins to rob the Wareco Station, nor did he instruct Hawkins to kill the attendant.
On cross-examination, the defendant denied that he had suggested to Hawkins that they should go to his sister's in order to establish an alibi. However, he admitted that he split the proceeds of the robbery with Hawkins.
The jury found defendant guilty of Count III of the indictment armed robbery; and not guilty of Count I murder, and not guilty of Count II murder committed in the course of the armed robbery.
Defendant contends that the jury rendered an inconsistent verdict when it returned the verdict of not guilty of Count II, murder committed in the course of the armed robbery, and guilty of Count III, armed robbery, and he should be discharged. He argues that armed robbery, being a forcible felony, is an essential element of felony murder; therefore, an acquittal on the charge of felony murder meant that the defendant had to be innocent of armed robbery. The State argues that the verdicts are not inconsistent because the jury could have found that the State failed to prove beyond a reasonable doubt the additional element of causing the death of the victim that is not present in the crime of armed robbery.
"* * * But where, as here, the verdicts inconsistently acquit and convict of separate crimes arising from the same act, our courts have followed the view that logical consistency in verdicts in such instances is not necessary, so long as the verdicts are not legally inconsistent. [Citations.] * * * [W]e follow the view that: `In law there is no inconsistency in verdicts of acquittal and conviction upon charges of crimes composed of different elements, but arising out of the same state of facts.'" (46 Ill.2d 348, 361-362.)
In determining whether verdicts are legally inconsistent, one must examine the elements of the crimes involved. If the crimes that the verdicts of acquittal and conviction are rendered on are composed of different elements, then different verdicts can stand. If the elements of the crimes are the same, then the verdicts must be the same. The test is whether the elements in the count wherein the accused is acquitted are identical to, or must be found in order to support a guilty verdict upon the count which resulted in a conviction. If so, the verdicts must be identical. (People v. Joyner, 50 Ill.2d 302, 278 N.E.2d 756.) A verdict which acquits the accused of a crime which includes acts necessary for the commission of another crime for which he is found guilty is inconsistent.
• 2, 3 In this jurisdiction, the rule is that when a murder is committed during a robbery, all participants in the robbery are deemed equally guilty of the murder, and it is immaterial who fired the fatal shot. The defendant need not have been actually present at the killing in order to be guilty ...