Appeal from the Circuit Court of Morgan County; the Hon.
George P. Coutrakon, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
An indictment in the circuit court of Morgan County charged the defendant, Danny R. Dawson, in count I with the murder of Charles McKinney, in count II with the murder of McKinney while committing the forcible felony of armed robbery, and in count III with the armed robbery of McKinney. All three charges arose out of the November 16, 1971, robbery and murder of Charles McKinney, a service station attendant in Jacksonville, Illinois. David L. Hawkins, the defendant's companion, pleaded guilty to the charge of murder and was sentenced to imprisonment in the penitentiary for not less than 35 nor more than 95 years. The present defendant, Dawson, pleaded not guilty, and after a trial, the jury found him guilty of armed robbery, but not guilty of murder.
The Appellate Court for the Fourth District, Justice Smith dissenting, held that the verdicts were inconsistent and therefore reversed the defendant's conviction on the armed robbery charge. (19 Ill. App.3d 150.) We granted leave to appeal.
It is undisputed that David Hawkins robbed and shot to death Charles McKinney. At the defendant's trial, Hawkins testified that he and the defendant had been drinking together on the evening of November 15. As they drove to Jacksonville from a nearby town, the defendant suggested that he knew a gas station which they could easily rob. They stopped at the gas station and both went in and bought cigarettes. After buying the cigarettes they drove around the block and Hawkins stated that the defendant handed him a handgun belonging to the defendant and said, "Go ahead" and "If the dude gives you any trouble, just shoot him." Dawson, on the other hand, testified that he and Hawkins had never discussed robbing the gas station, that Hawkins had gone back and committed the crime on his own after the defendant's car had broken down several blocks from the service station, and that he was unaware that Hawkins had robbed the station until after they had driven out of town.
The jury was given an Illinois Pattern Jury Instruction (IPI Criminal No. 5.03), which states:
"A person is responsible for the conduct of another person when, either before or during the commission of a crime, and with the intent to promote or facilitate the commission of a crime, he knowingly solicits, aids, abets, agrees or attempts to aid the other person in the planning or commission of the crime."
This instruction was followed by a description of the elements of the offense of armed robbery and the requisite proof of that offense. The court then gave IPI Criminal instruction 7.02:
"To sustain the charge of murder, the State must prove the following propositions:
First: That the defendant performed the acts which caused the death of [Charles Duane McKinney];
Second: That when the defendant did so,
he intended to kill or do great bodily harm to [Charles Duane McKinney], or
he knew that his act would cause death or great bodily harm to [Charles Duane McKinney], or
he knew that his acts created a strong probability of death or great bodily harm to ...