APPEAL from the Circuit Court of Cook County; the Hon. WARREN
D. WOLFSON, Judge, presiding.
MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:
The defendant, Willie Tillman, was charged with attempt murder and three counts of aggravated battery upon one David Butler. A jury found defendant guilty of all four charges. The trial court vacated the findings on two of the aggravated battery counts, holding that the three counts arose from the same act. The court sentenced the defendant to ten to twelve years for attempt murder, and to five to ten years for the remaining aggravated battery, the sentences to run concurrently. On appeal defendant contends that the trial court committed reversible error in instructing the jury, and that the conviction for aggravated battery must be reversed because it was based upon the same conduct supporting the attempt murder conviction. Defendant argues in the alternative that the minimum sentence for aggravated battery must be modified on the ground that defendant's election to be sentenced under the previous code was not based upon full knowledge.
Shortly after midnight on May 21, 1972, David Butler entered a tavern in the city of Chicago to use the washroom. As he left the washroom, he noticed defendant acting boisterously. Outside the tavern, Butler became involved in a brief verbal argument with a woman whose vehicle had been bumped in front of the tavern by a vehicle driven by Butler's friend. A few minutes later, Butler saw defendant and Butler's friend engage in a fist fight. When the fight broke up, defendant departed accompanied by the aforementioned woman. Defendant stated that he would be back. Butler reentered the tavern, ordered a beer, and sat at the bar.
A few minutes later, Butler heard a commotion. Defendant came up holding a gun in his right hand and swung at Butler with his left hand. When Butler threw up his arm to protect his face, defendant shot him in the left chest. Defendant again shot Butler, resulting in the latter being thrown face-first to the floor. As Butler attempted to arise, defendant shot him in the back. Defendant slowly fired three more shots into Butler's back. Defendant fled, and was apprehended approximately two years later.
At trial, Butler and the bartender, Howard Agnew, identified defendant as the man who shot Butler six times. Butler's cousin, Homer Butler, testified that he saw defendant at the scene of the crime and testified about the earlier quarrels and defendant's threat. It was also brought out at trial that after eight months in a hospital and rehabilitation institute, Butler was without use of his legs and had no control over his bowel and bladder.
Defendant initially urges that the trial court committed reversible error in the giving of certain instructions pertaining to attempt murder.
The indictment charging defendant with attempt murder states in pertinent part that:
"On May 21, 1972, * * * Willie Tillman committed the offense of attempt, in that he, with intent to commit the offense of murder, intentionally and knowingly, attempted to kill David Butler by shooting him with a gun without lawful justification * * *."
Defendant challenges the following three instructions which were given to the jury:
"A person commits the crime of attempt who, with the intent to commit Murder, does any act which constitutes a substantial step toward the commission of the crime of Murder.
The crime attempted need not have been committed." IPI Criminal No. 6.05
"A person commits the crime of murder who kills an individual if, in performing the acts which cause the death, he intends to kill or do great bodily harm to that individual; or he knows that such acts will cause death to that individual; or he knows that such acts create a strong probability of death or great bodily harm to that individual." IPI Criminal No. 7.01, with reference to felony-murder deleted.
"To sustain the charge of attempt, the State must prove the following propositions:
First: That the defendant performed an act which constituted a substantial step toward the commission ...