APPEAL from the Circuit Court of Kane County; the Hon. JOHN A.
KRAUSE, Judge, presiding.
MR. JUSTICE NASH DELIVERED THE OPINION OF THE COURT:
After trial by jury defendant, Robert Falkner, was convicted of the offense of felony murder (Ill. Rev. Stat. 1975, ch. 38, par. 9-1(a)(3)) and sentenced to a term of 15 to 30 years imprisonment. He appeals contending that commission by him of the underlying forcible felony alleged in this case, armed robbery, it being a necessary element of the felony murder charge, was not proved beyond a reasonable doubt. He contends that his conviction of felony murder should, therefore, be reduced by this court to the lesser included offense of involuntary manslaughter. Defendant also contends he was denied a fair trial when the State elicited prejudicial testimony from him about a gun which had no relationship to the instant case. We agree that his conviction must be reduced to involuntary manslaughter.
On June 26, 1976, at approximately 10 p.m., defendant entered the bar of the American Legion hall on Kane Street in Aurora. Some 15 to 30 minutes later he ordered two drinks from one of the bartenders, Leo Smith, who served them to him. Shortly thereafter a dispute arose between the two men with defendant contending Smith had shortchanged him. At some point during this dispute defendant pulled a revolver and demanded that Smith give him more money. While defendant was brandishing the revolver he was grabbed by one or more patrons of the bar and a struggle ensued during which the deceased, George Bell, who held defendant's gun arm, was shot and killed. Two or three shots were fired as defendant was forced to the floor and a bullet also struck Corrine Ford in her ankle. Defendant left the hall and subsequently turned himself in to the Aurora police on June 29. He was indicted in separate counts for aggravated battery in the shooting of Corrine Ford, armed robbery of Leo Smith and felony murder in causing the death of George Bell while committing the armed robbery of Smith. (Ill. Rev. Stat. 1975, ch. 38, pars. 12-4, 18-2, 9-1(a)(3).) At trial the aggravated battery count was nol-prossed and the jury returned verdicts of guilty to the armed robbery and felony murder counts and to the offense of involuntary manslaughter (Ill. Rev. Stat. 1975, ch. 38, par. 9-3(a)) upon which it was also instructed. Judgments were initially entered on all three verdicts but the judgments entered on the armed robbery and involuntary manslaughter verdicts were ultimately vacated and defendant was sentenced only on the felony murder conviction.
1 The State is required to prove beyond a reasonable doubt each of the essential elements necessary to constitute the crime charged. (People v. Stone (1973), 15 Ill. App.3d 926, 928, 305 N.E.2d 645, 646.) The offense of felony murder is defined as follows: "A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death: * * * (3) He is attempting or committing a forcible felony other than voluntary manslaughter." (Ill. Rev. Stat. 1975, ch. 38, par. 9-1(a)(3).) Proof that an accused was attempting or committing a forcible felony other than voluntary manslaughter is an essential element of felony murder under this definition. Defendant was charged with having committed felony murder in that he caused the death of George Bell while committing an armed robbery of Leo Smith; it was necessary, therefore, that the State prove each of the essential elements of the offense of armed robbery. "A person commits robbery when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force" (Ill. Rev. Stat. 1975, ch. 38, par. 18-1(a)), and "[a] person commits armed robbery when he [commits robbery] while armed with a dangerous weapon" (Ill. Rev. Stat. 1975, ch. 38, par. 18-2(a)). In the recent case of People v. White (1977), 67 Ill.2d 107, 365 N.E.2d 337, our supreme court held that the intent to deprive the person from whom the property is taken permanently of its use or benefit is an element of the crimes of robbery and armed robbery, thereby overruling a previous line of authority to the contrary (see, e.g., People v. White (1976), 40 Ill. App.3d 455, 352 N.E.2d 243, and cases cited therein).
Defendant contends that under the evidence here it is clear his taking of money from Smith at gunpoint was not done with the intent to rob him but rather was a reckless attempt to stop Smith from interfering with defendant's own property by shortchanging him. He asserts the requisite intent element of armed robbery was not present and, therefore, neither was the underlying forcible felony element of the felony murder charge. Conceding that his conduct in using a gun to prevent being shortchanged was certainly reckless, defendant asks that his conviction of felony murder be reduced by this court to involuntary manslaughter.
2 Since an intent to permanently deprive an owner of his property can seldom be proved by direct evidence it has been held that such intent may be deduced, or inferred, by the jury from acts committed and circumstances in evidence. (People v. Baddeley (1969), 106 Ill. App.2d 154, 158, 245 N.E.2d 593, 595.) While questions of credibility and weight are for the jury, and we do not lightly take the step of reversing a jury's determination of guilt, it is nevertheless the duty of a court of review to carefully review the evidence, and if it is not sufficient to remove all reasonable doubt of the guilt of the defendant and to create an abiding conviction that he is guilty, the conviction will be reversed. People v. Hister (1975), 60 Ill.2d 567, 573, 328 N.E.2d 531, 534.
Defendant, the bartender, Leo Smith, and several other persons present in the barroom, testified at trial as to their recollections of what transpired between defendant and Smith immediately prior to the production of the gun. Smith, called by the prosecution, stated defendant first gave him a $1 bill to pay for $1.50 worth of drinks and, after Smith informed him that was not enough, defendant gave him a $20 bill and Smith returned him $18.50 in change. Defendant then stated his change was incorrect claiming he had given Smith a $50 bill. Smith told defendant he was mistaken as there was not a $50 bill in his cash register whereupon defendant pulled a gun saying, "`Give me my money, give me all the money.'" Smith stated he than gave defendant $30 more and defendant again said "`Give me all of it.'" Smith then gave defendant a number of $10 bills which defendant put in his pocket. As defendant tried to leave the scuffle in which George Bell was killed ensued.
Defendant testified that he had worked as a welder in a factory for the past 10 years and earned $7 an hour. His weekly take home pay was about $212, although he put $75 into savings each week, and he had last been paid on the day before the incident in question. He stated he had cashed his 1975 Federal income tax refund check during the week before the shootings and on the night of the shootings he was carrying over $500 on his person, including quite a few $50 bills. He stated that because he was carrying a substantial sum of money, had been robbed twice before, and had recently been having some problems at the legion hall, he had decided to carry a gun on the evening of the events in question. Defendant testified he paid for the drinks he ordered with a $50 bill whereupon he noticed he had been shortchanged by Smith. He told Smith he had given him a $50 bill and Smith told defendant he did not owe him any change and walked away. Defendant told Smith a couple of times that he owed him $30 but was ignored. Defendant then stated to Smith, "`You owe me $30; give me my money,'" pulled his gun and again stated, "`Give me my money.'" Smith then gave him only $10 and defendant stated, "`Give me all of my god-damn money.'" Smith laid a couple more bills on the bar; defendant presumed they were the rest of his change, put them in his pocket and had started to leave when patrons grabbed him and the shooting occurred.
The pertinent testimony of the other witnesses called by the State in this regard was as follows:
Robert Waldsmith stated that he observed defendant give Smith a $20 bill to pay for some drinks. After receiving change, defendant claimed he had given Smith a $50 bill and had been shortchanged and said he wanted "all his change back." Smith told defendant he did not owe him any change and defendant pulled a gun and demanded that Smith "give him all the [m.f.] money." Smith then took a "whole bunch of money" from the cash register and gave it to defendant who put it in his pocket and started to leave.
Floyd Robinson testified he observed defendant holding a gun on Smith and heard him say to Smith that he had given him a $50 bill and that Smith owed him $30 stating, "`Leo, give me my money, don't you know I'll kill you?'" Smith then gave defendant an undetermined amount of money and defendant stated "`Give me all the money.'" Smith gave defendant some more money which he put in his pocket and then defendant was grabbed by someone and the shooting occurred.
L.C. Hope stated he heard an argument at the bar and when he looked up he observed defendant holding a gun and telling the bartender to "`Give me my m.f. money.'" The bartender then gave defendant some money and defendant stated "`Give me all the m.f. money.'" Hope left the room as the bartender gave defendant some more money.
Corrine Ford, who was wounded by one of the shots from defendant's gun, testified she heard defendant say he had been shortchanged. He demanded money from the bartender who gave him some and defendant "kept on demanding money, and [Smith] just kept giving him money." She did not know the amount in dispute or the amount which Smith gave defendant.
Early Vaughn testified that he saw defendant holding a gun and heard him direct Smith to ...