APPEAL from the Circuit Court of Cook County; the Hon. FRANK
W. BARBARO, Judge, presiding.
MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Defendant, Robert Lee Dordies, was indicted for murder (Ill. Rev. Stat. 1971, ch. 38, pars. 9-1, 9-1(a)(2), 9-1(a)(3)) and armed robbery (Ill. Rev. Stat. 1971, ch. 38, par. 18-2). Following a jury trial, he was found guilty of both offenses and sentenced to 18 to 35 years on the murder conviction and 8 to 15 years on the armed robbery conviction, the sentences to run concurrently. On appeal defendant contends that (1) the court erred in giving a particular instruction; (2) the court erred in returning the jury for further consideration of the murder charge; and (3) defendant was not proved guilty of the offenses beyond a reasonable doubt.
Calvin Thomas testified that on October 13, 1973, he and defendant were walking near 41st Street and King Drive in the city of Chicago when they decided to rob someone. They spotted an elderly man in a drugstore and began to follow him. Thomas moved in front of the man, later identified as Sam Stevenson, and pulled out a starter pistol, saying "It's a stick-up." At the same time, the victim reached into his own pocket and pulled out a gun. Thomas said that defendant then struggled with the victim and pulled the gun away from Stevenson. When Thomas and defendant saw a police car approaching, they turned and ran. Defendant turned again and fired the gun; Thomas then turned and saw Stevenson falling. At that point Thomas and defendant ran to an "El" train and divided the money they had taken from the victim. Shortly after the shooting, police officers James Alexander and Patrick Thompson arrived on the scene and found Stevenson. They took him to the hospital where he died three weeks later.
For several days after the shooting Thomas and defendant passed the gun back and forth between them. On November 3, 1973, Thomas, defendant, Eddie Robinson, and three other men walked into an apartment building where defendant gave Robinson the gun he had taken from Stevenson. When two security guards spotted the six young men drinking wine and smoking marijuana, Robinson threw the gun between two pipes in a radiator. One of the guards observed this, recovered the gun, and retrieved a bullet from Robinson's pocket. After the police were called, all six men were taken into custody. On November 21, 1973, Investigator Timothy Tidmarsh interviewed defendant in regard to the incident. When defendant indicated that he wanted to make a statement and began to relate the details of the night when Stevenson was shot, Tidmarsh summoned an assistant state's attorney and a court reporter.
Dr. Joseph Claparol, a coroner's pathologist, testified at trial that he performed the autopsy on Stevenson. The doctor found a partly healed bullet wound on the lower front chest, two surgical wounds on the stomach, and a wound on the pancreas where the bullet probably entered. Stevenson's abdominal cavity contained a large amount of pink turbid fluid and a large blood clot, which may have resulted from the perforation and developing infections. In Claparol's professional opinion, the cause of death was the bullet wound of the lower chest penetrating into the abdomen, going through the stomach with lacerations of the pancreas and subsequent infections.
Dr. Richard Shapiro, Stevenson's physician who treated him after the initial surgery and treatment, testified that the victim was very sick after the first surgery. Stevenson required a respiratory support machine, intravenous feeding, blood transfusions, antibiotics, and sedatives. He developed extensive peritonitis, a fever, and very low blood pressure. There was general agreement among the hospital personnel not to operate again because the risks of another operation outweighed the risks of not operating. A tracheotomy was also performed. In Shapiro's professional opinion, the cause of death was pulmonary and infectious complications of the gunshot wound.
Edmond Roman, an assistant state's attorney, testified that he was summoned to the police station and was present when defendant gave his statement. Roman read the statement aloud to the jury; it basically reiterated Thomas' testimony. Although given the opportunity to sign the statement in question, defendant refused to do so. Defendant did not testify.
At the instruction conference the state submitted an instruction not found in Illinois Pattern Jury Instructions, Criminal (IPI). The instruction read:
"You are instructed that where a person inflicts upon another a wound which is dangerous, that is calculated to endanger or destroy life it is no defense to a charge of murder that the victim's death is contributed to by infection, respiratory problems, internal bleeding or other complications or that the victim did not die immediately."
The court modified the suggested instruction and tendered it to the jury along with the other instructions.
The jury found defendant guilty of both charges, but a problem developed when the jury was being polled. One of the jurors said, "May I ask a question, your Honor?" An in camera hearing was then conducted and the juror stated that while he believed defendant was guilty of armed robbery, he had doubts about the cause of death. The juror said that although he had earlier found defendant guilty of murder, he did not want that to be his verdict now. The court then stated it would have to send the jury back for further deliberation. Defense counsel objected to the procedure of sending the jury back on the murder verdict alone, arguing that the jury should reconsider both verdicts or that the court should declare a mistrial. Once the court overruled the defense objection, it entered judgment on the armed robbery verdict and sent the jury back for further consideration of the murder charge. When the jury returned another verdict finding defendant guilty of murder, the jury was polled again. There were no additional problems and the court entered judgment on the murder verdict. Thereafter, defendant was sentenced and this appeal ensued.
Defendant contends that the giving of the non-IPI instruction was error because the wording of the instruction deprived him of the opportunity to have the jury consider his theory of defense and because the instruction was unnecessary as the issue was adequately covered by other IPI instructions. We agree that the instruction was erroneously given.
1, 2 The sole function of instructions is to convey to the minds of the jury the correct principles of law applicable to the evidence submitted to it in order that, having determined the final state of facts from the evidence, the jury may, by the application of proper legal principles, arrive at a correct conclusion according to the law and the evidence. (People v. Gambony (1948), 402 Ill. 74, 81-82, 83 N.E.2d 321.) Further, jury instructions should be neither misleading nor confusing, and should fully and fairly inform the jury of the applicable law. (People v. Godbout (1st Dist. 1976), 42 Ill. App.3d 1001, 1009, 356 N.E.2d 865; People v. Foster (4th Dist. 1974), 23 Ill. App.3d 559, 560, 319 N.E.2d 522; People v. Fort (1st Dist. 1971), 133 Ill. App.2d 473, 486, 273 N.E.2d 439.) In our opinion, the instruction ...