APPEAL from the Circuit Court of Logan County; the Hon. SAM
HARROD, III, and the Hon. WILLIAM T. CAISLEY, Judges, presiding,
and from the Circuit Court of Jersey County; the Hon. J. WALDO
ACKERMAN, Judge, presiding.
MR. PRESIDING JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
The three cases before us concern the common question of whether an individual who without actual intent to kill commits an unjustified act knowing that the act creates a strong probability of killing another is guilty of attempt murder when death does not result from his acts.
Two related questions are involved: (1) Is an allegation that with the intent to commit murder, but not killing anyone, a person acted as described in section 9-1(a)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 9-1(a)(2)) sufficient to charge the offense of attempt murder? (2) In an attempt murder case, are jury instructions proper which describe the commission of attempt murder in terms of section 9-1(a)(2) conduct done with the intent to commit murder but not resulting in death?
Section 8-4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 8-4) defines the offense of attempt as follows:
"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."
Section 9-1(a) of the Code (Ill. Rev. Stat. 1975, ch. 38, par. 9-1(a)) defines murder:
"A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:
(1) He either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; or
(2) He knows that such acts create a strong probability of death or great bodily harm to that individual or another; or
(3) He is attempting or committing a forcible felony other than voluntary manslaughter."
In Viser, the court held to be erroneous instructions which stated that the prosecution was required to prove beyond a reasonable doubt that, with intent to commit murder, the defendant took a substantial step towards committing murder. The instructions then defined murder as any of the three types of conduct listed in the disjunctive in section 9-1(a). The court ruled that this improperly permitted the jury to find the defendant guilty by reason of his participation in a forcible felony as described in section 9-1(a)(3) but without any actual intent to kill anyone. The rationale of the ruling was that without an intent to kill, there could be no attempt murder for "[t]here is no such criminal offense as an attempt to achieve an unintended result." 62 Ill. 568, 581, 343 N.E.2d 903, 910.) The court expressly refrained from ruling upon the sufficiency of the charge which listed the substantial step towards the commission of the offense as any of the three types of conduct listed in the disjunctive in section 9-1(a). The opinion made no reference to any error in the provision of the instruction defining murder which would have permitted the conviction of the defendant for engaging in section 9-1(a)(2) conduct.
The relationship between section 9-1(a)(2) conduct and the offense of attempt murder was dealt with extensively in Muir. There the indictment stated in significant part that the accused committed the offense of attempt murder in that:
"[H]e 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 * * *." (67 Ill.2d 86, 90, 365 N.E.2d 332.)
Neither the supreme court opinion in Muir nor that of the appellate court from which leave to appeal had been granted (38 Ill. App.3d 1051, 349 N.E.2d 423) set forth all of the instructions given concerning the mental state of the accused required to be proved in order to convict, but the supreme court opinion stated that the elements of the offense of murder were defined to the jury in the language of section 9-1(a)(2).
The supreme court ruled that the allegation in the charge stating that defendant knew that his conduct created a strong probability of causing death or great bodily harm should be construed as if the italicized portion was stated death or death and great bodily harm, thus avoiding an attempt murder conviction for an ordinary aggravated battery. The court also extensively discussed the question at issue here of whether conduct performed without actual intent to kill but committed with a knowledge that it created a strong probability of causing death or great bodily harm supports a conviction for attempt murder. The court concluded that it did because, although section 9-1(a)(2) does not describe a "subjective intent to kill" (67 Ill.2d 86, 93, 365 N.E.2d 332, 335), it describes conduct of such a malicious nature that the intent to kill is implied. The opinion relied upon comments of the committee drafting the Criminal Code of 1961 (Ill. Ann. Stat., ch. 38, par. 9-1, Committee Comments, at 8-10 (Smith-Hurd 1972)) and cases holding that proof of conduct described in section 9-1(a)(2) is sufficient proof of an intent by the actor to kill. The court ...