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People v. Trinkle

OPINION FILED OCTOBER 5, 1977.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

DAVID FRANCIS TRINKLE, APPELLEE.



Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Sangamon County, the Hon. Simon Friedman, Judge, presiding.

MR. JUSTICE DOOLEY DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 23, 1977.

Here the issue is whether a specific intent is requisite for the crime of attempted murder under the Criminal Code of 1961.

On February 28, 1974, the defendant drank 20 to 30 glasses of beer in Suppan's Tavern. The bartender, believing defendant to be intoxicated, refused him further service. After consuming more drinks in another bar, defendant purchased a .357 handgun. He returned to the area of Suppan's Tavern, fired a shot at the building, and wounded a patron within. He was indicted and convicted of the crime of attempted murder (Ill. Rev. Stat. 1973, ch. 38, pars. 8-4, 9-1). The appellate court held that a specific intent is an indispensable element to this crime, and hence the indictment and instructions relating to this crime were fatally erroneous. 40 Ill. App.3d 730.

Since the jury was instructed on aggravated battery the appellate court, pursuant to Rule 615(b)(4) (58 Ill.2d R. 615(b)(4)), modified the judgment to aggravated battery and reduced the sentence from an indeterminate term of 1 to 5 years to a minimum of 1 year and a maximum of 3 years. We granted the petition for leave to appeal pursuant to Supreme Court Rule 315 (58 Ill.2d R. 315).

The indictment charged:

"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 * * *."

The jury was instructed:

"A person commits the crime of attempt who, with intent to commit the crime of 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."

"A person commits the crime of murder who kills an individual if, in performing the acts which cause the death he knows that such acts create a strong possibility of death or great bodily harm to that individual or another."

"To sustain the charge of attempted murder, the State must prove the following propositions:

First: That the defendant performed the acts which caused the injury of Gayle E. Lane;

Second: That when the defendant did so, he knew that his act created a strong probability of causing death or great bodily ...


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