APPEAL from the Circuit Court of Sangamon County; the Hon.
WILLIAM D. CONWAY, Judge, presiding.
MR. JUSTICE REARDON DELIVERED THE OPINION OF THE COURT:
In a jury trial, defendant was found guilty of attempt murder under sections 8-4(a) and 9-1(a)(2) of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, pars. 8-4(a), 9-1(a)(2)), and sentenced to an indeterminate term of 1 to 5 years.
Section 8-4(a) provides that:
"A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense."
Section 9-1(a)(2) provides that:
"A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:
(2) He knows that such acts create a strong probability of death or great bodily harm to that individual or another; or."
The evidence shows that on February 28, 1974, defendant went to Suppan's Tavern for lunch, and remained the entire afternoon consuming between 20 and 30 glasses of beer. Late that afternoon, the bartender, believing defendant to be intoxicated, refused him further service from the bar. Defendant thereupon became angry and made statements to the effect that he would "shoot or blow up the bar." Following these statements, he went to another bar where he consumed several more drinks and purchased a .357 magnum handgun. Defendant then returned to the vicinity of Suppan's, fired a shot at the building, which pierced the front door, and wounded a patron inside the tavern.
The indictment for attempt murder charged that:
"David Francis Trinkle committed the offense of ATTEMPT (MURDER) in that said defendant did perform a substantial step toward the commission of that offense in that he did without lawful justification shoot Gayle Lane with a gun knowing that such act created a strong probability of death or great bodily harm to Gayle Lane or another * * *."
Defendant brings this appeal contending that (1) the indictment charging attempt murder is insufficient for failure to allege specific intent to commit murder; (2) that the jury was improperly instructed as to the mental state necessary to sustain a verdict of guilty of attempt murder; and (3) that the evidence was insufficient to prove beyond reasonable doubt that defendant intended to take human life.
The State argues that defendant had the requisite intent for attempt murder because he knowingly performed an act which created a strong probability of death or great bodily harm and was properly found guilty because he could have been found guilty of murder had the victim died.
• 1 An indictment for attempt need not set forth the elements of the crime attempted as fully and specifically as would be required in an indictment for the actual commission of the crime. (People v. Williams (1972), 52 Ill.2d 455, 288 N.E.2d 406.) Where specific intent is an element of the attempted offense, however, the indictment must include the elements of specific intent. (People v. Woodward (1973), 55 Ill.2d 134, 302 N.E.2d 62; People v. Mack (1974), 24 Ill. App.3d 455, 321 N.E.2d 446.) Attempt murder is a specific intent offense, and the specific intent which must be proved is the specific intent to kill. People v. Koshiol (1970), 45 Ill.2d 573, 262 N.E.2d 446; People v. Palmer (1964), 31 Ill.2d 58, 198 N.E.2d 839 (Koshiol and Palmer overruled on other grounds in People v. Nunn (1973), 55 Ill.2d 344, 304 N.E.2d 81, cert. denied, 416 U.S. 904, 40 L.Ed.2d 108, 94 S.Ct. 1608); People v. Davis (1972), 6 Ill. App.3d 622, 286 N.E.2d 8.
Both parties to this appeal cite the case of People v. Davis, and seemingly disagree as to its impact. The holding of the Davis case, insofar as it is applicable here, is that specific intent to kill must be proven to sustain a conviction of attempt murder. Although the specific intent to kill may be inferred from the circumstances of the assault (Koshiol), specific intent for attempted murder may not be transferred from the intent to commit another crime through the felony-murder rule. Davis; People v. Viser (1975), 62 Ill.2d 568, ...