APPEAL from the Circuit Court of Jackson County; the Hon.
PEYTON H. KUNCE, Judge, presiding.
MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
The defendant, Herbert L. Miner was convicted in the Circuit Court of Jackson County of "felony murder." He appeals.
On Sunday, January 12, 1975, sometime after 10 p.m., the Reverend Gary Tanner placed a telephone call to the Williamson County sheriff's department. Reverend Tanner, calling on behalf of the defendant, informed one Deputy Cradle that the defendant had been involved in a shooting earlier that night. Deputy Cradle agreed to meet Reverend Tanner and the defendant at the courthouse in Marion, Illinois. The defendant was subsequently taken into custody. Between 12 and 1 o'clock on the morning of January 13, acting upon information provided by defendant, the police discovered the body of James Starnes at the White Brother's mine, located approximately two miles northeast of Elkville, Illinois. The body was slumped over the steering wheel of a pickup truck. The truck's lights were on and its engine was running. Starnes had been shot in the face with a shotgun. In a statement given to the police shortly after his arrest, defendant had indicated that another person, Paul E. Ledbetter, was with him when Starnes was killed. The police, therefore, drove to Ledbetter's home in Elkville in order to question him. Ledbetter and his wife were home when the police arrived. They denied any knowledge of James Starnes' death and claimed to have been out together most of the night. Ledbetter was arrested and subsequently admitted that he had been involved in the homicide. Ledbetter then called his wife and instructed her to give the police his sawed-off shotgun; she did so.
The defendant and Paul Ledbetter were jointly indicted and tried for three counts of murder. The indictment charged defendants with murder under section 9-1(a)(1), (2) and (3) of the Criminal Code. *fn1 (Ill. Rev. Stat. 1975, ch. 38, par. 9-1(a)(1)-(3).) Prior to trial both defendants filed motions for a severance, arguing that their defenses were antagonistic and that the State planned to introduce at trial written statements made by each defendant inculpating the other. *fn2 Defendants relied upon these statements as evidence of the existence of antagonistic defenses. The motions for severance were denied by the trial court. Defendant Miner subsequently renewed his motion for a severance both prior to and during trial. The trial court denied the renewed motions. After a jury trial, Paul Ledbetter was acquitted on all counts of the indictment. The defendant was acquitted on the first two counts, but convicted of "felony murder" under section 9-1(a)(3). Ill. Rev. Stat. 1975, ch. 38, par. 9-1(a)(3).
Defendant now raises three issues for review: (1) whether the trial court erred in refusing to instruct the jury on the offense of involuntary manslaughter, (2) whether the trial court erred in refusing to present to the jury an instruction defining "attempt," and (3) whether defendant should have been granted a severance because the defenses of the co-defendants were antagonistic. The following is a summary of the evidence adduced at trial.
The evidence presented by the State in its case in chief consisted almost entirely of the testimony of two witnesses. The first witness called by the State was Reverend Gary Tanner. Reverend Tanner testified that he spoke with the defendant at about 10 o'clock on the night of January 12. The defendant was very nervous and upset at that time. According to Reverend Tanner, the defendant told him that, "We killed a man or shot a man." *fn3 Defendant then explained that he had driven to White Brother's mine earlier that evening to look for his brother and to get some gasoline. Defendant said that when he entered the mine property, James Starnes drove up to meet him. The men stopped and conversed. Defendant asked if his brother were there, and Starnes replied that he was not working that day. Defendant also asked Starnes if he could have some gas. Starnes said that he had two five-gallon cans, but defendant said that that was not enough to "fool with." The men then returned to their trucks and drove off. Once Starnes was out of sight, however, defendant drove back to the mine and parked next to some gasoline storage tanks located on the property. Evidently, Starnes saw the defendant drive back to the mine, because he turned around and drove toward the parked car.
Defendant told Reverend Tanner that as Starnes approached, "they got out of the car and went to the trunk, unlocked it and took out a [sawed-off shotgun]." Reverend Tanner's next statement, that "the other person handed [defendant] the gun," was objected to and the jury was instructed to disregard it. Defendant said that he tried, unsuccessfully, to cock the gun a number of times. He then got back into the car and waited for Starnes to approach. Starnes pulled up alongside the defendants' vehicle, facing in the opposite direction so that the driver's sides of the vehicles faced each other. Defendant put the barrel of the gun out the window and rested its stock in his lap. Defendant said that he didn't think the gun was loaded and "stuck it up to bluff him [Starnes]." Defendant again tried to cock the gun. He told Reverend Tanner that the person who was with him reached over and cocked the weapon, and that it then discharged. Once again, an objection to this reference to defendant Ledbetter was sustained. Defendant said that he never intentionally aimed the gun at Starnes, but Starnes was hit by the shotgun blast and slumped over the steering wheel of his truck. Defendant panicked and drove away. He stopped at a tavern, had a drink and then drove back to the mine area. Upon seeing the headlights from another car, however, he turned around and drove to Paul Ledbetter's home. Defendant told Mrs. Ledbetter that "they" had shot a man. The Ledbetters then drove the defendant to his home in Marion. Defendant subsequently contacted Reverend Tanner, who called the police. Reverend Tanner said that the defendant told the police the same story that defendant had related to him.
The next witness called by the State was John Halstead. *fn4 He testified that he was an Elkville police officer and knew Paul Ledbetter. Halstead said that during interrogation at the sheriff's office, Ledbetter asked to speak with him in private. Once they were alone, Ledbetter said "I am in a lot of trouble." When Halstead asked why, Ledbetter replied, "I did it * * * I was there." Ledbetter went on to explain that he had gone to the mine property to steal gasoline. He said that he met James Starnes at the mine and spoke with him, and that he and Starnes then parted company, driving in opposite directions. When Starnes was out of sight, however, Ledbetter returned for the gasoline. Ledbetter said that when Starnes saw him and started driving back, Ledbetter loaded his sawed-off shotgun and handed it to defendant. Starnes pulled up and asked what Ledbetter and the defendant were doing on mine property. Ledbetter said that the barrel of the shotgun was placed over the windowsill of their car, that Starnes was shot, and that they then fled. Ledbetter told Halstead that later that evening he and defendant returned to the mine to make sure Starnes was dead. They turned around, however, upon seeing the headlights of another car. Halstead's testimony concerning subsequent events closely follows the testimony given by Reverend Tanner. He also stated that Ledbetter told him that his wife had hidden his shotgun before giving it to the police.
After submitting exhibits consisting of Ledbetter's shotgun, an autopsy report and pictures of the victim, the State rested.
Herbert Speller was the first witness called on behalf of Paul Ledbetter. Speller stated that he was presently incarcerated in the Jackson County Jail and had been confined in the jail at the same time as Ledbetter and the defendant. Speller lived in a cell next to the defendant's for an unspecified period of time and conversed with him on several occasions. Speller testified that on March 18, 1975, defendant told him that he had unintentionally killed a man. Defendant said that he put a shotgun out the window and pulled back its hammer, but could not remember what happened after that. According to Speller, defendant also said that if he had to testify at trial, he would take Paul Ledbetter to the penitentiary with him by testifying that Ledbetter reached over and pulled the trigger.
Paul Ledbetter's wife, Starla, testified that on January 12 her husband left home, alone, about 11:30 in the morning and returned with the defendant at approximately 6 p.m. Because both men appeared to be badly shaken, Mrs. Ledbetter asked what was wrong. Her husband replied that defendant had just shot and killed a man. Defendant affirmed Paul Ledbetter's statement, repeating it over and over. Defendant, suddenly remembering that Ledbetter's shotgun was still in the car, went outside and brought it in. He then demonstrated what had happened, holding the shotgun and saying, "See I was holding it just like this, and I asked Starnes, `Do you know what this is?' and it went off." According to Mrs. Ledbetter, defendant threatened to tell the police that she had killed Starnes. He also demonstrated Starnes' facial contortions after being shot. Defendant's erratic behavior worried Mrs. Ledbetter and she asked him to put down the gun. Defendant then unloaded the weapon and gave Mrs. Ledbetter both the gun and a spent shell. She put the shell in her pocket and hid the gun under a bed. The Ledbetters asked defendant to spend the night with them, but defendant insisted upon going home to prepare an alibi. After taking the defendant to his home in Marion, the Ledbetters returned to their trailer.
Paul Ledbetter told his wife that defendant had wanted to steal gasoline at the mine. The Ledbetters went to bed, but were awakened a short time later by the police. The police questioned both of them, and both said that they had been out together most of the night. Paul Ledbetter allowed the police to search his car, but not the trailer. The police arrested Ledbetter and said, as they were leaving, that they would return with a warrant to search the trailer. A deputy was stationed outside the trailer to await their return. While she was alone in the trailer, Mrs. Ledbetter concealed the shotgun in a mattress. Her husband called shortly thereafter, however, and instructed her to turn in the gun. She complied with her husband's wishes, giving the police both the sawed-off shotgun and the spent shell.
Paul Ledbetter testified in his own behalf. He said that he had worked at White Brother's mine from August of 1974 until shortly before Christmas. Ledbetter testified that he met the defendant, who also worked at the mine, some time in August. On January 12, 1975, defendant and Ledbetter went to a local tavern where they spent some time drinking and shooting pool. They then left the tavern to look for defendant's half-brother, William Miner. Defendant drove Ledbetter's automobile several places without finding his brother. Because William worked at White Brother's mine, the defendant decided to look for him there. According to Ledbetter, he and defendant also intended to hunt rabbits at the mine. Defendant, therefore, stopped the car before entering the mine property and took Ledbetter's sawed-off shotgun out of the trunk. Ledbetter, who was sitting next to the defendant in the front seat of the car, loaded the gun as defendant drove onto the White Brother's property. Defendant proceeded slowly down a road leading into the mine pit. Ledbetter stated that he looked at the fuel gauge and said that they needed some gas. Defendant replied, "We will get some gas at the mine." Ledbetter resisted defendant's suggestion, but defendant adamantly stated, "We don't have to buy any gas, we can go steal it." At this time, the men noticed a white pickup truck driving out of the pit of the mine. Ledbetter said to forget about stealing gas because other people were present. Defendant drove past the mine's fuel pumps, and Ledbetter assumed that he had abandoned his plan to steal gasoline. As the other vehicle disappeared from view, however, defendant said, "I am going to get the gas now," and backed up to the pumps.
The truck which the men had seen earlier returned at this time and pulled up between the vehicle driven by defendant and the pumps. The driver of the truck was James Starnes, whom Ledbetter had met while working at the mine. Ledbetter got out of the car, walked over to Starnes' truck and exchanged pleasantries with him. As Ledbetter reentered his car, the defendant aimed the shotgun at Starnes and demanded gasoline. Starnes resisted the defendant's demand, saying that he did not have a key to unlock the tanks and that they were empty anyway. According to Ledbetter, the defendant insisted that Starnes give him some gasoline and repeatedly asked, "Do you know what this gun is?" The weapon discharged, killing Starnes. Ledbetter said he did not know exactly how it ...