APPEAL from the Circuit Court of Kendall County; the Hon. REX
MEILINGER, Judge, presiding.
MR. PRESIDING JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 22, 1975.
This is an appeal from a conviction for murder as a result of which the defendant was sentenced to a term of not less than 15 nor more than 30 years in the penitentiary.
Defendant alleges three grounds for the appeal: (1) that the trial court committed prejudicial error in instructing the jury under section 5-2 of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 5-2 (Accountability for the Conduct of Another)), inasmuch as the court not only gave the standard Illinois Pattern Jury Instruction on accountability but also another instruction on common design which defendant claims required a less culpable state of mind for conviction; (2) that the defendant was not proven guilty beyond a reasonable doubt under either the accountability instruction or the additional common-design instruction given to the jury; (3) that it was error for the court to enter judgment of conviction on each of two verdicts of guilty returned by the jury.
From the testimony it appears that the defendant was sitting in a tavern drinking beer during the afternoon of the crime. Sometime during the afternoon one Couch came into the tavern. The defendant was not acquainted with Couch. Another person, a frequent customer of the tavern by the name of Sadie Markham, also came into the tavern during the afternoon. She also was unacquainted with Couch but apparently had some acquaintance with the defendant. (Although she testified she had not known the defendant previously, there was contrary testimony.) Also, during the afternoon, the deceased, Donald Kirklin, came into the tavern. Kirklin was a friend of Sadie Markham's and the step-father of the defendant's wife. The defendant and Kirklin were not on good terms.
According to a statement made to the police by the defendant, when Couch came into the tavern he remarked that he had just gotten out of jail for fighting with a man over some money the man had stolen from him. After Kirklin entered the tavern Couch told the defendant that Kirklin had stolen $100 from him sometime during that week. He saw Couch and Kirklin in the back of the tavern and they were arguing; however, then they started laughing and, according to the defendant, Couch came back to the bar joking that he was going to "get Don" (Kirklin). However, after that they all sat together again drinking beer. Sadie Markham also testified that while they were all drinking beer in the tavern she overheard Couch say to Kirklin that he "would get his money one way or another."
Around 5 o'clock they all left the tavern together in the defendant's car. Sadie testified that they just went "riding around" rather aimlessly. After awhile they found themselves on a country road. They had been drinking cans of beer which they had purchased when they left the tavern. The testimony was that all of them got out of the car to urinate. At that time, according to Sadie Markham, both the defendant and Couch started punching and kicking Kirklin but they stopped and the three men got back into the car. Sadie testified that at that time Couch said to Kirklin, "I oughta kill you right now."
In any event, they all got back into the car together and rode around some more. From the testimony it appears they continued to drink beer during all of this time. Sadie Markham testified that a little while after the first incident they stopped again. The three men got out and went around to the front of the car and off to one side, out of her sight. After a few minutes Couch and the defendant returned. The defendant had no shirt on, although he had been wearing a T-shirt when he left the car. Also, Sadie testified, the defendant was carrying a piece of bumper-jack which he put in the car in the front. The defendant remarked that he would have to go back to town to get some more clothes. Then, before they left the scene, according to Sadie, the defendant said to Couch that he should go back and make sure that Kirklin was dead. They then started to drive back to Aurora. Shortly thereafter the defendant lost control of the car and hit a tree, wrecking the car. They then started to walk the remaining distance back to Aurora and were picked up by the police, who had been alerted that a car had run off the road. The police at that time were unaware of the killing.
The defendant's version sharply disagreed with Sadie's in some particulars. He did not take the stand, except for the limited purpose of testifying concerning the circumstances of the taking of a statement from him a few hours after the incident, in an attempt to suppress the statement. However, the statement was ruled admissible as having been voluntarily and intelligently made. In his statement the defendant said that after he had stopped the car the first time and they all got out, Couch started a fight with Kirklin, which he, the defendant, broke up after Kirklin called to him to come and help him. That they all then got back in the car and started driving around and they got lost. They stopped again and got out of the car and then Sadie got back in. At that time, according to the defendant, Kirklin made an offensive remark to the defendant and the defendant struck Kirklin. He said he hit him only a couple of blows with his fist and that Kirklin remained on his feet. However, this triggered a reaction in Couch and Couch knocked Kirklin down and started kicking him. The defendant said he left Couch and Kirklin struggling and went back to the car. Couch returned alone and the defendant then went back to where Kirklin was lying on the ground and saw that he was not breathing. He picked up a piece of bumper-jack which was lying alongside of Kirklin and put it back in the car. He then panicked and drove away but lost control of the car and hit a tree. In his statement the defendant said he opened the trunk of the car after the fight with Kirklin to look for another shirt, since the one he had on was ripped. He did not explain how it got ripped and actually the shirt was not just ripped, according to Sadie and the arresting officer who stopped them on the road it was missing entirely. The defendant said that when he opened the trunk of the car to look for another shirt, Couch, who was standing alongside, picked up a piece of a bumper-jack out of the trunk and went over to where Kirklin was lying. He did not actually observe Couch hit Kirklin with the bumper-jack but heard something that sounded "like he was hitting and again it sounded like he was hitting the dirt." When the defendant went back to see Kirklin he saw that Kirklin was not breathing. The defendant denied doing more than striking the deceased twice with his fist.
There is no record of any testimony by Couch because Couch was found incompetent to stand trial. However, there is not much conflict between Sadie's testimony and the defendant's except that Sadie testified that the defendant had taken part in the attack on Kirklin the first time they got out of the car, whereas the defendant said he had not struck Kirklin at that time but had, in fact, broken up the fight between Couch and Kirklin. Sadie did not see what happened the second time as it was out of her sight, according to her testimony. She merely saw the three men get out of the car and walk around in front and to the side. She then saw only Couch and the defendant return, Couch first, then the defendant without his shirt. She did not testify that she heard anything.
The defendant admitted that he and Kirklin were not on good terms because of a previous family fight. However, on the basis of the actual testimony there was no direct evidence that the defendant did the killing, rather than Couch. The physical evidence indicated death was caused by a blunt instrument; however, the defendant only admitted striking the deceased with his fist and even then only after provocation. Sadie Markham's reputation generally and for truthfulness was not good, but in any event she did not claim to have observed the defendant strike the victim the second time, even with his fist. The most damning evidence she gave against the defendant was that she saw him return to the car without his shirt and that he had placed a bumper-jack part in the car after he returned.
The indictment was in three counts. Count I, that the defendant struck Donald Kirklin with his fists and a part of a bumper-jack thus causing his death; count II, that the defendant struck Donald Kirklin with his fist and part of a bumper-jack, knowing this would cause his death, and count III, that the defendant struck Donald Kirklin with his fist and a part of a bumper-jack knowing there was a great probability this would cause his death. The jury returned a guilty verdict on counts II and III.
The argument of the defendant that it was error to give the instruction on common design as well as the standard IPI instruction on accountability rests on the contention that there was no evidence from which a common design could be deduced and the instruction was therefore prejudicial.
There seems to be little doubt after a thorough review of the testimony that there was sufficient evidence to justify the giving of the standard IPI ...