APPEAL from the Circuit Court of Cook County; the Hon. FRANK
B. MACHALA, Judge, presiding.
MR. JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 22, 1981.
The defendant, Willie Miles, appeals from his convictions for voluntary manslaughter and armed violence based on voluntary manslaughter and the imposition of concurrent seven-year sentences for these convictions. On appeal, the defendant urges that his convictions were improper because: (1) voluntary manslaughter could not serve as the underlying offense for an armed violence charge based upon equal protection considerations and the rules of statutory construction; (2) the information failed to properly charge the offense of armed violence; (3) the verdict could not sustain the conviction because the instructions did not define "dangerous weapon" nor did they direct the jury to determine whether the use of a gun was proven beyond a reasonable doubt; (4) the defendant's confession was uncorroborated and, therefore, the State failed to prove the corpus delicti and the defendant's guilt beyond a reasonable doubt; and (5) the court erred in entering judgment and sentencing the defendant on both armed violence and voluntary manslaughter in that both arose out of the same act.
We affirm in part and reverse in part.
The facts pertaining to this case are not contested by the parties. On July 1, 1978, at approximately 12:50 a.m. Chicago police officer Milton Marshall was participating in a narcotics raid at 5727 South Prairie Street when he heard two or three gun shots. Shortly thereafter, an unnamed man approached him and accompanied him to a tavern approximately one-half block from the site of the narcotics raid. There, Marshall found a man bleeding from an apparent gunshot wound to the upper portion of his body. Marshall found no weapon on the decedent nor did he find a weapon in the near vicinity. No one in the vicinity or in the tavern supplied any information to Marshall as to what had occurred. When other police officers responded to Marshall's call for assistance, Marshall returned to his original assignment.
As a part of the investigation of this case police investigator Robert Strahlman picked up the defendant and took him to Area 1 homicide office where he informed him of his constitutional rights. At this time the defendant made a statement to Stahlman to the effect that on July 1, 1978, at about 1 a.m. he was in front of Mama D's lounge at 206 East 58th Street when he became involved in a heated argument with Antonia Duncan regarding drugs. The defendant told Strahlman that when Duncan "came at him," the defendant who was 5'5" and weighed 130 pounds drew a .38 revolver and shot him three times. According to his statement, after the shooting the defendant threw his gun into the Washington Park lagoon. The defendant gave Assistant State's Attorney Timothy Quinn this same statement, adding only that the argument arose when Duncan accused him of giving Duncan bad drugs. Miles denied giving Duncan any drugs. After giving these statements the defendant showed Strahlman and Quinn where the shooting occurred and where he disposed of the gun. The gun was never recovered.
Dr. Tai An, the Cook County pathologist who conducted the autopsy on the decedent, stated that the decedent was 5'11" and weighed 160 pounds at the time of his death. He attributed the cause of death to a bullet wound of the face which lacerated the brain; however, he noted that the autopsy also revealed a laceration on the right side of the nose and a number of small abrasions to the decedent's left collar bone, right hand, palm and fingers. Dr. An testified that these wounds might have been caused by more than one bullet or by the shattering of a single bullet.
After receiving the foregoing evidence, the jury found the defendant guilty of voluntary manslaughter and armed violence based on the commission of the voluntary manslaughter. On December 5, 1978, the defendant's written post-trial motion and motion in arrest of judgment were denied and the defendant sentenced to concurrent seven-year sentences. The defendant has filed a timely notice of appeal.
We consider first the defendant's argument that count IV of the information was insufficient because we believe that this issue is determinative of several other issues raised on appeal. The instant information contained four counts. Counts I and II charged the defendant with murder under sections 9-1(a)(1) and 9-1(a)(2) and counts III and IV charged the defendant with armed violence based on the underlying offenses of murder (Ill. Rev. Stat. 1978 Supp., ch. 38, par. 33A-2) and voluntary manslaughter (Ill. Rev. Stat. 1977, ch. 38, par. 9-2(b)). Count IV specifically charged that the defendant "committed the offense of armed violence in that he, while armed with a dangerous weapon, to wit: a gun, committed a felony defined by Illinois law, to wit: voluntary manslaughter in violation of Chapter 38 Section 33A-2/9-2(b) Illinois Revised Statutes and against the peace and dignity of the People of the State of Illinois."
The statutes referred to in count IV provided in pertinent part:
"§ 33A-2. Armed violence — Elements of the offense. A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law."
"§ 9-2. Voluntary Manslaughter. (a) A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:
(1) The individual killed, or
(2) Another whom the offender endeavors to kill, but he negligently or accidentally causes the ...