Appeal from the Circuit Court of Cook County; the Hon. Maurice
D. Pompey, Judge, presiding.
PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 15, 1982.
Defendant was convicted in a jury trial of attempted murder, armed robbery, and aggravated battery and sentenced concurrently to 25 years for attempted murder and armed robbery and to 5 years for aggravated battery. On appeal, he contends that (1) he was not proved guilty of attempted murder beyond a reasonable doubt; (2) the trial court erred (a) by improperly instructing the jury on attempted murder and (b) by admitting evidence of other crimes; (3) evidence of another robbery allegedly committed by defendant was precluded from admission by the Juvenile Court Act (Ill. Rev. Stat. 1977, ch. 37, par. 702-9(1)); (4) he was 16 at the time of the offenses for which he was tried; and (5) his convictions for aggravated battery and attempted murder were based on the same act.
Complainant testified that she returned home from work at 1 a.m. on November 22, 1978; that as she was parking her car in front of her house at 5243 West Kammerling, in Chicago, she observed a man, whom she identified in court as defendant, walking down the sidewalk adjacent to her house; that after she parked the car, she walked to the sidewalk and asked defendant, who was then standing on the step of her house, whether she could help him; that he asked whether Judy was home — to which she replied that he had the wrong house; that defendant then walked toward her and, when he was 2 to 3 feet away, she saw a small dark gun in his hand pointed at her abdominal area with his finger on the trigger; that he told her if she said anything he would kill her, and he ordered her to give him her purse; that she told him, "You can have the purse, there's nothing in it, but you can have it"; that he then placed his right arm around her neck and, holding the gun in his left hand, pressed it against her face and started walking her away from the house toward the alley; that she repeatedly asked him not to hurt her; that when they had walked four or five steps, she "started pulling away" from him, and he shot her in the lower left jaw; and that he then released her and walked away with her purse. She identified in court a gun, a dark navy pea jacket, and a blue knit ski hat as similar to those defendant had on the night in question.
On cross-examination, plaintiff testified that "as soon as I tried to pull away I was shot" and then, when asked whether her assailant put more force around her neck with his arm when she started to pull away, she answered, "I don't remember because when I started to pull away it seems to me that simultaneously I was shot."
Over defense objection, the State also presented testimony concerning two other armed robberies of women — one before and one after the occurrence in question — which were allegedly committed by defendant. *fn1 Officer Richard Banaszkiewicz testified that at the time he arrested defendant for one of those armed robberies, he recovered a navy pea jacket, a blue knit ski hat, a nylon stocking mask, and a .22-caliber pistol.
The sole witness for the defense was defendant's mother, who testified that her son was born at 8:45 a.m. on November 22, 1961.
We consider first the contention of defendant that he was not proved guilty beyond a reasonable doubt.
• 1 To sustain a conviction for attempted murder, it must be shown that the accused acted with the specific intent to kill (People v. Roberts (1979), 75 Ill.2d 1, 387 N.E.2d 331), but intent is a state of mind which, if not admitted, can be shown by surrounding circumstances, and the intent to take a life may be inferred from the character of the assault, the use of a deadly weapon, and other circumstances (People v. Koshiol (1970), 45 Ill.2d 573, 262 N.E.2d 446, cert. denied (1971), 401 U.S. 978, 28 L.Ed.2d 329, 91 S.Ct. 1209).
In the case before us, complainant testified that defendant pointed a gun to her stomach and said he would kill her if she said anything; that after he took her purse, he grabbed her and began walking her to a nearby alley, holding her around the neck with his right arm and pressing the gun held in his left hand to her jaw; that after they had walked four or five steps she started to pull away, and he shot her in the face; and that when she started screaming, he walked away with her purse.
On cross-examination, when she was asked whether defendant put more force around her neck with his right arm when she started to pull away, she answered, "I don't remember, because when I started to pull away it seems to me that simultaneously I was shot." Based solely upon complainant's use of the word "simultaneously," defendant argues "Mrs. Hall [complainant] was shot at the instant she tried to jerk away. This indicates that the shooting was accidental, a reflex action * * *, not an intentional act."
This argument assumes that complainant, in attempting to free herself, used force sufficient to cause defendant to accidentally discharge the gun. There is, however, nothing in the record to support such an assumption. No questions were asked of complainant to clarify her use of the word "simultaneously," and no inquiry was made to determine either the nature of any effort she made to free herself or whether she had in fact used any force to do so at the time of the shooting. She stated only that when she started to pull away from defendant, it seemed to her that simultaneously she was shot.
• 2 Furthermore, the record does not otherwise indicate that the shooting was accidental. Complainant gave uncontradicted testimony that with the gun pointed at her stomach and his finger on the trigger, defendant threatened to kill her; that he was pulling her toward the alley with the gun pressed to her face when it was discharged; and that after the shooting he neither said nor did anything to indicate an accidental shooting. In addition, from the testimony of defendant's mother that she always kept the gun unloaded, it is reasonable to conclude that defendant loaded the gun prior to the shooting. Moreover, the apparent difficulty in the trigger pull of the gun further negates the assumption of an accidental shooting. Defense counsel, referring to the gun in closing argument, stated "[t]his trigger, it is a little difficult to pull, not so difficult to pull that it can't be jerked, but difficult to pull," and he then suggested to the jurors that they try to pull the trigger in the jury room "to see how difficult it is to pull with the hand that you don't normally use." Conceivably, the jurors followed this suggestion and perhaps found that the trigger was so difficult to pull that it could not be discharged accidentally, as contended by defendant. Furthermore, it has been stated that "the very fact of firing a gun at a person supports the conclusion that the person doing so acted with the intent ...