APPEAL from the Circuit Court of Vermilion County; the Hon.
CARL A. LUND, Judge, presiding.
MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
After trial by jury in the circuit court of Vermilion County, defendant Charles Seaton was convicted on March 17, 1978, of murder and two counts of aggravated assault arising from a series of incidents occurring in Danville on the night of November 19, 1977. He was sentenced to concurrent terms of 1 year for each of the aggravated assaults and 15 to 35 years for the murder. On appeal he asserts that the court erred in refusing his tendered instructions as to involuntary manslaughter in regard to the murder charge and in failing to instruct the jury as to reckless conduct in regard to all three charges.
Defendant and co-defendant Wayne S. Mikel were jointly indicted but were tried separately. We have affirmed Mikel's convictions and sentences in People v. Mikel (1979), 73 Ill. App.3d 550, 391 N.E.2d 21. The evidence presented at both trials was in substantial conformity. At defendant's trial evidence was presented that sometime between 11 and 12 p.m. on November 19, 1977, defendant drove his truck through Danville with Mikel as a passenger. At about 11:30 p.m., a truck stopped at the corner of Jackson and Van Buren and the passenger, later identified as Mikel, fired a rifle out the window narrowly missing one of the black men standing nearby. That man made a photographic and in-court identification of defendant as the driver of the truck.
A few minutes later, this truck was seen at the corner of Washington and North, shots were fired from the truck and a black man was hit and died. Shortly thereafter and several blocks away on Gilbert (Route 1), the passenger in a truck later identified as defendant's, fired a rifle out the truck window putting a bullet through the door panel on the driver's side of a car in the adjacent lane.
A few days later, Danville police officers questioned defendant regarding the shooting. An officer testified that after being advised of his Miranda rights, defendant told the officers that on the night in question, after he and Mikel left a tavern on Main Street in Danville, Mikel said, "Let's get us a nigger" or something like that and defendant said that he (defendant) had a gun. At trial, defendant denied that such a conversation occurred and denied telling that to the police. In his statement, defendant also said that Mikel was just shooting the gun at Washington and North when he hit the man, that Mikel shot twice, but the man was still walking when they left. Defendant also showed the officers the route he and Mikel took that evening.
At trial, defendant testified that he was driving his truck that night and Mikel was a passenger. Defendant had been trapping that day and had his rifle in a gun rack in the truck. He remembered driving on Jackson and Mikel "hollering at some colored people," but he did not know if anyone used the gun then. At the intersection of North and Washington, Mikel pointed the gun out defendant's window and shot a couple of times. Mikel then said that there was a man back there and defendant looked back and saw the man walking. They then drove to Westville on Route 1, but defendant recalled nothing unusual happening on the way.
The question of whether defendant was entitled to have a manslaughter instruction given is somewhat complicated. He argues that the jury could have determined that Mikel shot indiscriminately, without intent to hit anyone or knowledge that he was likely to do so or the jury could have found that because of intoxication, Mikel was unable to form either of those mental states. Defendant maintains that under those circumstances, Mikel would have possessed a mental state of only recklessness and would have been guilty of only involuntary manslaughter as to the killing of Anvil Nelson. Accordingly, he argues, defendant's guilt by accountability would only be for that offense. The State maintains that the evidence did not support a determination by the jury that Mikel lacked the required intent or knowledge to commit murder.
In this State the rules determining whether one may be held criminally liable for the conduct of another are set forth in section 5-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 5-2), which provides that such accountability exists when:
"(a) Having a mental state described by the statute defining the offense, he causes another to perform the conduct, and the other person in fact or by reason of legal incapacity lacks such a mental state; or
(b) The statute defining the offense makes him so accountable; or
(c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense."
As defendant's theory in support of the involuntary manslaughter instruction is premised upon the jury's possible finding that Mikel possessed a mental state of recklessness at a time when Mikel killed Mr. Nelson, we must consider the application of section 5-2 to the various mental states that defendant might have possessed at that time.
Section 5-2(a) concerns the situation where the principal lacks the required mental state for an offense but a person to be charged with accountability possesses that mental state and causes the principal to commit the conduct required for the offense. Intent or knowledge is the mental state required for murder while involuntary manslaughter requires recklessness. (Ill. Rev. Stat. 1977, ch. 38, pars. 9-1, 9-3.) If defendant here aided, abetted or encouraged the conduct of Mikel which brought about the unjustified killing of Mr. Nelson, defendant's acts would be a cause of that killing. If defendant did so with the intent that Mr. Nelson be killed or receive great bodily harm or with knowledge that a strong probability existed that this would happen, defendant would have been guilty of murder even though, as claimed by defendant, Mikel possessed only the mental state of recklessness.
Furthermore, section 5-2(a) could not be the basis of any accountability of defendant for involuntary manslaughter because accountability there depends upon the principal lacking the mental state for the offense and defendant's theory is premised upon Mikel possessing that mental state, recklessness. Likewise, section 5-2(b) could not be the basis for any accountability of defendant for involuntary manslaughter because section 9-3 defining that offense makes no provision for criminal liability by accountability. Accordingly, we must determine whether section ...