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People v. Harris

OPINION FILED MAY 26, 1978.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

WILLIAM MYERS HARRIS, APPELLEE. — THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

JOHNNIE E. SHIELDS, APPELLEE.



No. 49909. — Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Champaign County, the Hon. Birch E. Morgan, Judge, presiding.

No. 50340. — Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Peoria County, the Hon. C.M. Wilson, Judge, presiding.

MR. CHIEF JUSTICE WARD DELIVERED THE OPINION OF THE COURT:

William J. Scott, Attorney General, of Springfield, and Michael M. Mihm, State's Attorney, of Peoria (Donald B. Mackay and Melbourne A. Noel, Assistant Attorneys General, of Chicago, and James E. Hinterlong, of the State's Attorneys Appellate Service Commission, of Ottawa, for the People.

Mary Robinson, Deputy Defender, of the Office of the State Appellate Defender, of Elgin, for appellee.

Each of these two appeals, which were consolidated here for decision, involves a conviction on a charge of attempted murder in which the adequacy of the instructions given on the element of intent is put in issue.

In cause No. 49909, People v. William Myers Harris, the defendant was convicted on a charge, made by information, of the attempted murder of Joyce Baker on the night of November 18, 1975, in a country area east of Champaign. In a separate count the defendant was charged with aggravated kidnapping.

The alleged murder attempt took place while Miss Baker was sitting inside her car and the defendant was standing behind the car with a pistol in his hand. The defendant and Miss Baker had been keeping company. For much of the evening they had been engaged in an argument in which the defendant accused the victim of infidelity. As the argument became more heated, the defendant, who was driving, reached down and picked up a revolver from the floor of the car and placed it in his lap with the barrel pointed toward Miss Baker. He made several remarks which Miss Baker interpreted as threats to kill her.

Alarmed, she opened the door on her side of the car, got out and began to run away, but ran into a barbed wire fence, injuring her leg. The defendant also got out of the car. He did not pursue her, but remained standing by the car. After her collision with the fence, Miss Baker returned to the car, and made an unsuccessful attempt to capture the gun, which the defendant was holding in his hand and pointing in her general direction. Miss Baker then got into the car on the driver's side, and drove off toward a nearby farmhouse. She testified that as she drove off she looked in the rear vision mirror and saw the defendant standing behind the car. He was holding the gun with both hands, and pointing it at her. Then she heard something strike the rear window, and the broken pane of glass in the rear window fell out of its frame. There were no other witnesses, but following this episode the police were summoned, and they found the defendant walking down the road near the scene of the episode just described. When the car was located, the police officers testified, the rear glass was broken, and a bullet fragment was found on the left side of the rear seat.

The jury returned a verdict of guilty on the charge of attempted murder and a verdict of not guilty on the aggravated kidnapping charge. The defendant was sentenced to serve a term of not less than 4 years and not more than 12 years.

The information charged that the defendant "committed the offense of ATTEMPTED MURDER (CLASS 1 FELONY), in violation of Section 8-4 of Chapter 38 of the Illinois Revised Statutes of 1973, as amended, in that he, with the intent to commit the crime of murder of Joyce A. Baker did an act which constituted a substantial step toward the commission of that offense by shooting a gun at her." No complaint is made as to the information.

The following instructions to the jury were tendered by the State and were given, over the objection of the defendant:

"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."

"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 of the crime of murder; and

Second: That the defendant did so with intent to commit the crime of murder.

"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."

The defendant objected to the last of the instructions on the ground that it told the jury it could find him guilty of attempted murder if the jury found that he had acted only with the intent to do great bodily harm and did not have the intent to cause death.

The Appellate Court for the Fourth District, whose opinion issued before People v. Trinkle (1977), 68 Ill.2d 198, was decided, held that the defendant's objections had been waived since they were not renewed in his post-trial motion. The court also stated that the last instruction was proper under our decision in People v. Muir (1977), 67 Ill.2d 86. The court therefore affirmed the conviction. People v. Harris (1977), 48 Ill. App.3d 1074 (order under Supreme Court Rule 23).

The appellate court nevertheless held that the minimum sentence of four years was improper, since the record showed that that sentence was imposed because the trial court believed it was mandatory, a view which the appellate court found erroneous. The court accordingly remanded the cause for resentencing. The State appealed from this part of the judgment. This court subsequently decided in People v. Moore (1978), 69 Ill.2d 520, that a minimum sentence of four years is not required on conviction of attempted murder, and in its reply brief the State has confessed error on this point. In his answering brief the defendant, as he may do under Rule 318(a) (58 Ill.2d R. 318(a)), challenges the portion of the decision relating to the instructions.

In cause No. 50340, People v. Johnnie E. Shields, the defendant was indicted for the attempted murder of Marion Bradley and for aggravated battery arising out of the same act. The offense was the aftermath of a fight between the defendant and the victim's son, Robert, which took place in the defendant's apartment (which adjoined the apartment occupied by Mrs. Bradley and her son) in the early morning hours of New Year's day. The testimony is in conflict on many points. It requires only a brief summary, however, since its sufficiency to sustain the conviction is not challenged here.

It appears that Robert was highly intoxicated, that he had stumbled against a table and broken it, and that the defendant was attempting to subdue him. After the fight Robert and his mother went back to their apartment. A short time later the defendant appeared at their door armed with a shotgun, and said, "I'm going to kill you." Robert and the victim fled outdoors, pursued by the defendant. The victim then stationed herself in front of Robert to shield him. The defendant told her to move aside, or he would blow her brains out, and after a short scuffle over the possession of the gun, he fired, wounding her.

The jury found the defendant guilty of both attempted murder and aggravated battery, but the trial court entered judgment only on the former. It imposed a sentence of imprisonment of not less than 7 and not more than 21 years.

The count of the indictment relating to attempted murder charged that the defendant had committed the offense of attempted murder "in that with the intent to commit the offense of MURDER * * * he did an act which constitutes a substantial step toward the commission of that offense, in that he did shoot Marion Bradley in the chest with a shotgun, knowing that such act created a strong probability of death or great bodily harm to Marion Bradley." The defendant makes no complaint to the indictment.

The State tendered the following instructions which were given:

"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."

"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 of the crime of Murder; and

SECOND: That the defendant did so with intent to commit the crime of Murder."

"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 probability of ...


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