APPEAL from the Circuit Court of Williamson County; the Hon.
WILLIAM A. LEWIS, Judge, presiding.
MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
In May 1977, Clarence Wilson was convicted of murder following a jury trial in the Circuit Court of Williamson County and was sentenced to a term of 50 to 75 years. Because of the nature of his allegations on appeal, it is necessary to set out in some detail the chronology of the legal proceedings which led to this conviction.
On June 1, 1970, the defendant and two accomplices, James Sharp and Donald Mitchell, attempted to burglarize a supermarket in Oblong. They were interrupted in this activity by the police chief of Oblong and the officer was fatally shot.
In August 1970, defendant was tried in the Circuit Court of Wayne County on charges of murder, murder while attempting to commit burglary, and attempt to commit burglary. The jury returned guilty verdicts on all three counts but the court, for reasons which will be explained below, entered judgments of conviction only for murder and attempt to commit burglary. Defendant took a direct appeal to our supreme court and his convictions were affirmed. People v. Wilson, 51 Ill.2d 302, 281 N.E.2d 626 (1972).
Defendant then filed a petition for post-conviction relief, alleging that his convictions were obtained in violation of Napue v. Illinois, 360 U.S. 264, 3 L.Ed.2d 1217, 79 S.Ct. 1173, (1959) because Sharp and Mitchell had falsely testified at his trial that they had received no consideration for their testimonies and the prosecutor had failed to correct this false testimony. Following a hearing, the trial court denied the relief sought and we affirmed this denial in Wilson v. People, 13 Ill. App.3d 675, 300 N.E.2d 576 (5th Dist. 1973).
Defendant then filed a habeas corpus petition in Federal district court and the relief was denied. The United States Court of Appeals for the Seventh Circuit, however, reversed and vacated defendant's murder conviction. The attempted burglary conviction was not disturbed. The court of appeals ordered the district court to fix a reasonable period of time within which the State could retry defendant for murder. (United States ex rel. Wilson v. Cannon, 538 F.2d 1271, 1278 (7th Cir. 1976).) The district court ordered that defendant be tried by January 24, 1977.
The State reinstated the murder indictment in September 1976. In November, it secured a new indictment for murder in the course of attempting to commit burglary, sometimes known as "felony murder." Prior to trial in the Circuit Court of Wabash County, defendant moved to dismiss the felony murder indictment on the ground that it violated his constitutional and statutory guarantees against double jeopardy. The motion was granted and defendant was tried for murder. A mistrial was declared on January 14, 1977, because the jury could not agree on a verdict.
On January 21, the State moved the Federal district court to grant an additional 120 days within which to try the defendant. Defendant objected and the court allowed an additional 90 days, or until April 21, in which to try Wilson.
In response to defendant's motion, venue was transferred to Williamson County and trial was set for April 18, 1977. The State moved to reinstate the felony murder charge. Following a hearing the trial court denied the motion. A week later the trial judge reconsidered and granted the motion. Therefore, trial was held on both murder and "felony murder" indictments. Over defendant's objection the jury was instructed that it should return a general verdict of guilty if it found defendant guilty of either charge. The jury returned a verdict of guilty on April 22, 1977.
Defendant's first contention on appeal is that he was unconstitutionally placed in double jeopardy when he was indicted for "felony murder" and convicted in 1977 because the State had nolle prossed the original 1970 "felony murder" indictment after a guilty verdict had been returned. We disagree.
When the jury returned guilty verdicts to both the murder and "felony murder" charges, the State, apparently believing that judgment could not be entered on both, moved to nolle prosequi the "felony murder" count and the motion was granted. Although the State in its brief to this court suggests that the parties in 1970 were relying on People v. Schlenger, 13 Ill.2d 63, 147 N.E.2d 316 (1958), and the record neither supports nor contradicts this suggestion, we do not believe that Schlenger was applicable. Schlenger, and the numerous cases following prior to People v. King, 66 Ill.2d 551, 363 N.E.2d 838 (1977) (see, e.g., People v. Scott, 43 Ill.2d 135, 251 N.E.2d 190 (1969); People v. Stewart, 45 Ill.2d 310, 259 N.E.2d 24 (1970); People v. Williams, 60 Ill.2d 1, 322 N.E.2d 819 (1975)) stood for the proposition that judgment could only be entered on the more serious of two offenses arising from the same act or course of conduct where the acts or conduct were not separately motivated. Inasmuch as murder and "felony murder" are in fact the same crime, as will be explained below, it is more likely that the State in 1970 was attempting to make a redundant verdict disappear. The fact that a redundant verdict existed at all resulted from the submission of separate verdicts on each rather than submitting general verdicts of guilty or not guilty of murder.
"Felony murder" is not a crime found in our statutes. As defendant concedes, the phrase is a shorthand manner for expressing a theory by which murder may be prosecuted. The crime of murder is described in section 9-1 of the Criminal Code of 1961 as follows:
"(a) 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 ...