APPEAL from the Circuit Court of Cook County; the Hon. ROMIE
PALMER, Judge, presiding.
MR. PRESIDING JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
At the conclusion of a jury trial in the circuit court of Cook County, defendant, Lonell Mosley, was found guilty of one count of murder (Ill. Rev. Stat. 1973, ch. 38, par. 9-1), two counts of attempt murder (Ill. Rev. Stat. 1973, ch. 38, par. 8-4(a)), and one count of aggravated battery (Ill. Rev. Stat. 1973, ch. 38, par. 12-4). Defendant was sentenced to concurrent prison terms of 50 to 100 years for murder, 10 to 20 years for one count of attempt murder and 10 to 30 years for the other count of attempt murder.
On appeal defendant contends reversible error occurred when: (1) the trial court instructed the jury that defendant could be found guilty of attempt murder if he had the intent to murder or do great bodily harm; and (2) the trial court abused its discretion by imposing an excessive sentence of 50 to 100 years for murder.
While no issue is raised as to the sufficiency of the evidence to establish guilt beyond a reasonable doubt, we find it necessary to briefly summarize the evidence.
The evidence at trial discloses that on May 19, 1974, William Templin, a 26-year-old security trainee for the Penn Central Railroad, was shot to death while searching for goods which were missing from a railroad car. Templin, who was dressed in civilian clothes and armed with only a flashlight, and his partner, Joseph Gill, who was dressed in uniform and armed with a gun, had separated to facilitate the search. When Templin did not return Gill's radio calls, Gill notified headquarters and began looking for Templin.
As Gill walked down the railroad embankment, he saw a hole in a fence which separates the railroad tracks from the Chicago Skyway. After walking further, he saw the shape of two heads among the weeds. As Gill shouted "halt," two shots were fired. Gill returned fire, emptying his gun. When he retreated to his squad car, two more shots were fired at him.
After additional police officers arrived, Gill led them along the embankment. Gill found Templin lying face down in the weeds. Templin had been shot in the back of the head and was dead.
At trial, police officer Daniel Hammond testified that he and his partner were sitting in their squad car near 69th Street and Calumet Avenue when they heard a series of gun shots. They proceeded toward the Chicago Skyway and approximately two minutes later, as they drove on Anthony Street which runs parallel to the Skyway, they saw three black men dressed in dark clothing heading through a gangway near 70th Street.
As the police officers proceeded to drive through the alley behind Anthony Street, Hammond again saw the three men. Two of the men climbed over a fence, and the third, who held a rifle in his hand, was in the process of jumping over the fence. As the police officers exited from the car, Hammond shouted, "Halt, police officer." Drawing his revolver, Hammond then jumped over the fence and landed in a courtyard adjacent to several buildings.
When Hammond was 10 feet from the fence, he saw a human silhouette move on a stairwell under the center porch of the nearby building. Hammond then saw a flash of light and heard a gunshot. As he felt his arm become limp, he dropped his revolver. Hammond ran back and jumped over the fence. As his partner crossed the gangway to assist him, more shots were fired.
Police officers Ford and Irving arrived in a squad car. After they directed the squad car spotlight in the gangway and left the car, they saw a man, later identified as David Beverly, jump to the ground from the second story porch of one of the nearby buildings. They chased the man as he ran to Eberhart Street and subsequently apprehended him. Police sergeant John Burge testified he searched the second story porch where Beverly first was seen and he recovered an M-1 carbine rifle, ammunition, and clothing including a black military fatigue jacket.
While Ford and Irving were chasing Beverly, police officers Mitchell and Jones joined Hammond. Mitchell and Irving jumped over the fence and into the courtyard. Mitchell saw defendant standing in a stairwell. After Mitchell shouted to the defendant to halt, defendant dropped the .30 caliber M-1 carbine rifle he was holding.
From the stairwell, the officers recovered the rifle and an ammunition clip. Subsequently, defendant's fingerprint was taken from this clip. The police also recovered a revolver which was later identified as Hammond's gun. Police sergeant Hose Crossley, who also assisted in the arrest, testified that when defendant was apprehended he was wearing a black shirt jacket, black jungle fatigues, and black boots.
A few blocks away, the third accomplice, a man called Alto, who was dressed in clothing similar to defendant's and Beverly's clothing, was shot to death by the return gunfire of police officer Word. ...