APPEAL from the Circuit Court of St. Clair County; the Hon.
JOHN J. HOBAN, Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Defendant, Andre P. Woods, was indicted for the offenses of attempt (murder) and attempt (armed robbery). Following a jury trial in the circuit court of St. Clair County, the jury returned guilty verdicts on both charges. The court imposed sentence solely upon the attempt (murder) verdict, the sentence being a penitentiary term of from four to 10 years.
The defendant raises the following issue on appeal: whether the trial court erred in not reversing the attempt (murder) conviction when it specifically found that the evidence proved that the defendant did not fire the shot.
Also in this appeal, the State argues that we must remand this cause to the trial court for the imposition of a judgment and sentence upon the jury's verdict of guilty of the attempt (armed robbery) offense.
This cause involves an incident which occurred at the Vaughn Service Station in Washington Park, Illinois, on August 28, 1975. Two extremely different versions emerged from the testimony of the State's witnesses and the defendant.
According to the testimony of State's witnesses Thomas Angle, Tim Vaughn, and Daniel Vaughn, employees at the station owned by Ray Vaughn, the defendant entered the office area of the station at approximately 2:50 p.m. He thereafter pulled out a small caliber gun and said, "You know what it is, motherfuckers. Hit the floor." The gun was positively identified as People's Exhibit No. 6, a .25 caliber Colt automatic. When Dan Vaughn took longer to get onto the floor than the others, the defendant struck him on the head with his gun, causing him to bleed. At this point, the defendant became aware of the fact that Ray Vaughn was working in the garage area. He then went into that area. After he did so, Tim and Dan armed themselves with handguns which were kept in the office. Tim got a .25 caliber pistol and Dan, a .38 caliber revolver. Tom Angle left the station to summon the police, and Tim and Dan entered the garage area. Dan was in the lead by about 10 feet as they approached the rear of the garage where a scuffle was in progress in the storage room between the defendant and Ray Vaughn.
The defendant and Vaughn emerged from the room. Mr. Vaughn had a hold upon defendant which pinioned defendant on his back but left the defendant's hands free. The defendant, still wielding his handgun, shouted at Dan either, "Drop your gun or I will kill him" or "I'm going to kill him." Tim and Dan heard a shot from defendant's gun. Ray Vaughn exclaimed that he had been shot and stumbled to the ground. The Vaughns then opened fire on defendant. Tim's gun jammed after one shot, but Dan believed he fired all five shots which his revolver held.
The defendant was wounded and collapsed to the floor. Since he still held his gun, Ray Vaughn, who was also on the floor, grabbed a nearby hammer and struck defendant until Dan was able to take his gun away and place it on a workbench. The police arrived shortly thereafter.
According to the defendant, while hitchhiking he was let off near the Vaughn station. He went in and asked to see the proprietor. Ray Vaughn, who was working in the garage area, was pointed out to him. He went in and inquired about a job. Mr. Vaughn told him that he did not hire Negroes and an argument developed. After Vaughn apparently noticed the imprint of defendant's gun in his shirt pocket, he called out to his son that the defendant was armed. One of the sons came in firing on defendant, wounding him in four places.
Defendant admitted that at the time he was carrying a .25 caliber automatic pistol loaded with two or three bullets but testified that there was no bullet in the chamber and that he never fired the gun at the station. He explained that he had been carrying the gun for about a week because someone had been tampering with his car by loosening the lug nuts on his tires.
Detective Sergeant John Herndon of the Washington Park Police department testified that the defendant's gun was turned over to him by Chief Louis Oliver at the scene of the crime. He removed the clip and found two live rounds of ammunition in it. The weapon was safe at that time since there was no live round in the gun's chamber. On cross-examination, the detective testified that if such an automatic were operating in the proper mechanical fashion, a live round would be automatically transferred from the clip to the chamber after the gun was fired. However, it would not be unusual for the next bullet to have jammed in the clip since such a malfunction frequently occurs in such weapons.
State Police Detective Gerald Johnson testified that he did not examine the defendant's gun at the service station; however, about one month later he performed a test to determine if the gun would fire. He did not perform a test to determine if the gun had been recently fired, and to his knowledge such a test was never performed by anyone. The gun did not have a clip in it when he received it. He loaded a clip with three bullets and tested it. It functioned properly all three times. He further testified that he had been informed by the Washington Park Police that two bullets were found in the clip of defendant's gun. He had no knowledge whether a bullet was found in its chamber.
The approach of the defendant with respect to his sufficiency of the evidence issue is somewhat unique. He seeks only alternatively to have us assess in the customary manner whether the evidence proved him guilty of attempt (murder) beyond a reasonable doubt. He primarily seeks a declaration that a trial court has the inherent power to enter a judgment notwithstanding the verdict in criminal cases and a finding that the court's failure to enter a judgment of acquittal n.o.v. in the instant case was reversible error.
Defendant argues that the trial court made a specific determination that the defendant did not fire his gun and that it was therefore incumbent upon it to set aside ...