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People v. Muir

OPINION FILED JUNE 1, 1977.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

DAVID ERNEST MUIR, APPELLEE.



Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Du Page County, the Hon. Alfred E. Woodward, Judge, presiding.

MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

The defendant, David Muir, was convicted of the offense of attempted murder (Ill. Rev. Stat. 1973, ch. 38, pars. 8-4(a), 9-1(a)(2)) following a jury trial in Du Page County. He was sentenced to 4 to 8 years' imprisonment. Upon appeal, the Appellate Court for the Second District reversed defendant's conviction. (38 Ill. App.3d 1051.) We granted the State leave to appeal (58 Ill.2d Rules 315(a), 604(a)(2)) and now reverse the decision of the appellate court.

A police officer testified for the State that on June 15, 1973, he went to a location where a burglary had been reported to be in progress. The officer testified that when he arrived he saw a figure crawling away from the area. This figure was the defendant. The officer proceeded to a point about 50 feet away from where the defendant was crouched behind a car. At this time, the officer saw that defendant had a pistol in his right hand. The officer testified that defendant pulled back the slide on the top of the pistol with his left hand and held the pistol in both hands pointed at the officer.

The police officer recognized the defendant and proceeded toward him while urging that he drop the gun. The officer further testified that when they were about 30 feet apart the defendant pulled the trigger. The gun did not fire, but the officer heard an audible "click." Defendant began to run, and the officer gave chase. While running, defendant again pulled back the slide and pointed the gun over his left shoulder at the officer. The officer testified that he again heard a "click," but that the pistol did not discharge. After being apprehended, the defendant repeatedly asked the officer, "Why didn't you shoot me?"

Defendant testified that he had placed the call to the local police department and falsely reported a breaking and entering in progress. Defendant also testified that he did not pull the trigger of the gun and that it was his intention to commit suicide by having the police officer shoot him.

The weapon when retrieved was loaded with three cartridges in the clip and two jammed into the chamber of the gun, one behind the other. A sixth cartridge was found along the route over which the defendant had fled. The officer who retrieved the gun stated: "I found it with the slide back and in a jammed condition." The two bullets in the chamber were visible through the opening in the side of the slide.

The appellate court reversed the defendant's conviction on the ground that the indictment was fatally defective. The indictment, in pertinent part, provided that the defendant committed the crime of attempted murder in that:

"* * * he did with the intent to commit the offense of Murder in violation of Section 9-1a2 of Chapter 38, Illinois Revised Statutes take a substantial step towards the commission of said offense in that he did without lawful justification point a loaded gun at [name of officer] and pull the trigger knowing such acts created a strong probability of death or great bodily harm * * *."

Section 8-4(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 8-4(a)) sets forth the crime of attempt:

"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."

The specific offense charged was murder as that crime is defined in section 9-1(a)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 9-1(a)(2)):

"(a) A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:

(1) * * *

(2) He knows that such acts create a strong probability of death or great ...


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