APPEAL from the Circuit Court of Cook County; the Hon. FRED G.
SURIA, JR., Judge, presiding.
MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
After a jury trial, Michael Stevens (defendant) was found guilty of murder and attempt armed robbery. He was sentenced respectively to 20 to 35 years and 6 to 20 years concurrently. He appeals.
In this court, defendant questions whether his guilt on the theory of accountability was proved beyond a reasonable doubt, the validity of his arrest and the voluntary character of his written confession.
A summary of the facts is required. The deceased, Donald Sucilla, was driving a CTA bus on the evening of December 21, 1977. Joyce Graves was a passenger. She sat on the first seat facing forward across from the driver. Two young men, whom she identified as defendant and Marlon Shannon, approached the driver. Defendant said something to Graves which she did not hear. Shannon pointed a gun at her and said, "Give him your purse." She gave her purse to the defendant. He sat down beside her. Shannon demanded the driver's wallet. He refused and Shannon shot him. Shannon and defendant fled.
A woman named Connie Fluker testified that on the same evening Shannon and a taller man, whom she could not identify, approached her and robbed her at gunpoint. Shannon held the gun.
It appears from defendant's written confession he met Shannon some 4 weeks before the shooting. On December 21, 1977, defendant took his father's revolver from the house. He showed Shannon the gun. Shannon told defendant they would go out and make some money. They went together and robbed a woman on Lowe Street. This was Connie Fluker. They boarded the bus and decided to rob a woman passenger. Shannon pointed the gun at her and defendant took her purse. Shannon demanded the driver's wallet. The driver refused and Shannon shot him. Defendant and Shannon fled to the home of Shannon's girlfriend. Later that evening, defendant went home and put the gun away.
In due course the police obtained possession of the gun from defendant's home. Ballistics evidence showed the fatal bullet came from the gun in question.
Defendant takes the position that since Shannon actually fired the fatal shot, defendant can be found guilty only if the evidence shows he was legally accountable. The People attempt to justify the conviction not only on the theory of accountability but also on the theory of felony murder.
The statute on felony murder (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)(3)) provides:
"(a) A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:
(3) He is attempting or committing a forcible felony other than voluntary manslaughter."
The statute on accountability (Ill. Rev. Stat. 1979, ch. 38, par. 5-2(c)) provides:
"A person is legally accountable for the conduct of another when:
"(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."
• 1 Under either of these theories the identity of the person who held the gun in the attempt armed robbery and murder of the bus driver is legally immaterial. This has been the unquestioned law of the State of Illinois for many years. In People v. Johnson (1973), 55 Ill.2d 62, 67, 302 N.E.2d 20, the supreme court quoted from People v. Weber (1948), 401 Ill. 584, 604, 83 N.E.2d 297, cert. denied (1949), 336 U.S. 969, 93 L.Ed. 1120, 69 S.Ct. 930, and added additional citations to this statement:
"Where murder is committed during a robbery, all participants in the robbery are deemed equally guilty of murder and it is immaterial who fired the fatal shot."
• 2, 3 On the issue of accountability, it is correct that mere presence at the scene of the crime or negative acquiescence in action by others is insufficient to establish accountability but active participation in the overt act is not required. (People v. Dandridge (1979), 79 Ill. App.3d 693, 695, 398 N.E.2d 955.) In addition, it has been held that where defendant has aided and abetted or attempted to aid and abet in the perpetration of a crime, that is sufficient to prove accountability. (People v. Tyler (1979), 78 Ill.2d 193, 196, 399 N.E.2d 975.) Furthermore, ...