APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM
V. DALY, Judge, presiding.
MR. PRESIDING JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Defendant was indicted on six counts of armed robbery, each count involving a separate victim. After a trial without jury, he was found guilty as to counts 2, 3 and 4, namely, the armed robbery of Jeffrey Jones, Calvin Johnson and Hattie Johnson, respectively. A judgment of conviction was entered and the trial court imposed a sentence of three to five years in the penitentiary.
On appeal defendant contends that the prosecution failed to disprove his affirmative defense of compulsion beyond a reasonable doubt, and alternatively, that the trial court erred in entering judgment of conviction on three counts of armed robbery which all arose out of the same criminal transaction. The pertinent facts follow.
Calvin Johnson testified for the State. On July 16, 1971, he and his wife, Hattie Johnson, resided on the second floor of an apartment building at 1457 South Hamlin Avenue, in Chicago. Jeffrey Jones and his wife Esther resided on the first floor with Jeffrey Jones' parents. Esther Jones and Hattie Johnson are sisters. At 11 a.m. Johnson and his wife descended the hallway stairs and noticed that the front door of the Jones apartment was ajar. They knocked at the front door and rang the doorbell. A man came to the door and in reply to Hattie Johnson's inquiry said that Esther Jones was busy. When the Johnsons inquired further the man pulled out a handgun and forced them into the living room. Johnson had seen this man previously and knew him as "Mr. Hilton" and "Bo Peep." Johnson saw Jeffrey Jones' parents sitting on the sofa; Jeffrey also was on the sofa, but he was tied up and a pillow had been placed over his head. Johnson then saw Esther Jones come from the rear of the apartment escorted by a man he identified at trial as defendant, who was armed with a handgun. Hilton then took money and jewelry from Johnson and his wife and tied up both of them. Hilton and defendant went into the bedroom and began to ransack it, then left the apartment. Some 30 minutes later Esther Jones untied her husband and the Johnsons.
Hattie Johnson testified substantially to the same events as her husband, except she did not testify that the assailant who tied her up had a weapon.
Jeffrey Jones testified that he was confronted in his apartment by a man who put a handgun to his head and announced a stickup. He positioned Jones on the sofa, tied him up and put a pillow over his head. Jones did not see anyone else. After being released by his wife he discovered that the bedroom had been ransacked and money and jewelry taken.
Defendant testified in his own behalf. He had known Claude Hilton, who was also called Bo Peep, for about 12 years; they were both drug addicts. He knew Hilton had a violent temper and had heard that he had shot at other people in the past. On the morning of July 16, 1971, he met Hilton in a pool hall; when Hilton asked if he had any money the defendant replied that he did not. Hilton then said he knew where to get some money and that defendant should go with him to get it and share in drugs he would buy with the money. Defendant did not ask where he planned to get the money nor where they were going when they left the pool hall. As they walked down the 1400 block of South Hamlin Avenue defendant met a Mr. Moore, father of a friend. He talked with him for several minutes while Hilton continued walking. Defendant then went into a building he had seen Hilton enter, and he noticed the door to the first floor apartment was open. Hilton called to him from inside and when defendant went into the living room he saw Hilton holding a gun on an elderly man. Hilton told defendant to go to the back to look for any other occupants, and defendant found Jeffrey and Esther Jones in the kitchen. Hilton took Jones into the living room and tied him up while defendant remained in the kitchen with Esther Jones. He said he told her to sit down and keep calm because Hilton was very nervous. He heard the doorbell ring and a knock at the front door. When Hilton called to him to come out defendant escorted Esther Jones into the living room where he saw Hilton forcing the Johnsons into the apartment. Hilton then took money and jewelry from the Johnsons and Esther Jones.
Defendant denied taking anything from the apartment or from anyone, but admitted having tied up Hattie Johnson and helping Hilton ransack the bedroom. He denied being armed, but admitted he shared in the robbery proceeds and did not report the incident to the police. He stated that until he entered the apartment he did not know Hilton was armed and planning a robbery. He further testified that while in the apartment he saw an expression of anger on Hilton's face he had never seen before; that Hilton was waving his gun at everyone; that he considered fleeing from the back of the apartment when he was there alone with Esther Jones, but did not attempt to because he thought the kitchen door had bars on it, and that he was concerned as to what Hilton would do to him if he ran. In response to an inquiry by defense counsel as to whether he would have suffered death or great bodily harm from Hilton if he did not comply with his directives, defendant stated that such was possible. He added that he believed he could prevent others from being hurt if he stayed in the apartment.
In rebuttal, Jeffrey Jones testified that the kitchen door and windows in his apartment were not barred.
After closing arguments the trial court found defendant guilty on the armed robbery counts 2, 3 and 4, relating to Calvin Johnson, Hattie Johnson and Jeffrey Jones. Judgment of conviction was entered upon those findings and a hearing in aggravation and mitigation was held. The trial court imposed sentence upon defendant to serve three to five years in the penitentiary.
• 1 Defendant first contends that the prosecution failed to prove beyond a reasonable doubt his guilt as to the issue raised by his affirmative defense of compulsion. We disagree. Section 3-2 of the Illinois Criminal Code of 1961 (Ill. Rev. Stat. 1971, ch. 38, par. 3-2) provides that an affirmative defense is raised by an accused by the presentation of some evidence thereon; further, that once raised, the prosecution must sustain the burden of proving the accused guilty beyond a reasonable doubt as to that issue, as well as all the other elements of the offense.
Section 7-11 of the Illinois Criminal Code of 1961 (Ill. Rev. Stat. 1971, ch. 38, par. 7-11) provides in pertinent part:
(a) A person is not guilty of an offense, other than an offense punishable with death, by reason of conduct which he performs under compulsion of threat or menace of the imminent infliction of death or great bodily harm, if he reasonably believes that death or great bodily harm will be inflicted upon him if he does not perform such conduct.
The statute requires first, the presence of an imminent danger of death or great bodily harm being inflicted; and second, that the accused have a reasonable belief that the foregoing would be inflicted upon him if he did not perform the conduct. (People v. Ricker (1970), 45 Ill.2d 562, 262 N.E.2d 456.) A threat of future injury is not sufficient to excuse criminal conduct. (People v. Davis (1974), 16 Ill. App.3d 846, ...